IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


^ 


1.0 


Lg|2j8     12.5 

Ui  lii  12.2 


I.I 


iU 

u 


6" 


Hiotographic 

Sciences 

Corporertion 


23  VtflST  MAIN  ST^HT 

WIBSTIi,N.Y.  MStO 

(716)  •72-4503 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Instituta  for  Historical  iVIicroreproductions  /  institut  Canadian  da  microraproductions  historiquas 


Il9 


Tttchnicai  and  Bibliographic  Notas/Notes  tacliniquas  at  bibiiographiquas 


Tha  instituta  lias  attamptad  to  obtain  tha  bast 
original  copy  avaiiabia  for  filming.  Faaturas  of  this 
copy  which  may  ba  bibliographically  uniqua, 
which  may  altar  any  of  tha  imagas  in  tha 
raproduction,  or  which  may  significantly  changa 
tha  usual  mathod  of  filming,  ara  chackad  baiow. 


D 


Colourad  covars/ 
Couvartura  da  coulaur 


|~n    Covars  damagad/ 


Couvartura  andommagte 

Covars  rastorad  and/or  laminatad/ 
Couvartura  rastaurte  at/ou  palliculia 


I     I   Covar  titia  missing/ 


La  titra  da  couvartura  manqua 


□   Colourad  maps/ 
< 


Cartas  g6ographiquas  an  coulaur 


□    Colourad  ink  (l.a.  othar  than  blua  or  black)/ 
Encre  da  coulaur  (l.a.  autra  qua  blaua  ou  noira) 

I     I    Colourad  piatas  and/or  illustrations/ 


0 


D 


D 


Planchas  at/ou  illustrations  an  coulaur 

Bound  with  othar  matarial/ 
Rail*  avac  d'autras  documanta 

Tight  binding  may  causa  shadows  or  distortion 
along  intarior  margin/ 

La  re  liura  sarrda  paut  causar  da  I'ombra  ou  da  la 
distortion  la  long  da  la  marga  int^riaura 

Blank  laavas  addad  during  rastoration  may 
appaar  within  tha  taxt.  Whanavar  possibia,  thasa 
hava  baan  omittad  from  filming/ 
11  sa  paut  qua  cartainas  pagas  blanchaa  ajouttes 
lors  d'una  rastauration  apparaissant  dans  la  taxta, 
mala,  lorsqua  caia  Atait  possibia,  cas  pagas  n'ont 
pas  titi  filmtes. 

Additional  commants:/ 
Commantairas  supplAmantairaa; 


Thi 
toi 


L'Institut  a  microfilm*  la  mailiaur  axamplaira 
qu'il  lui  a  6t6  possibia  da  sa  procurer.  Las  details 
da  cat  axamplaira  qui  sont  paut-Atra  uniques  du 
point  da  vue  bibliographiqua,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mAthoda  normala  de  filmaga 
sont  indiqute  ci-dessous. 


□   Coloured  pages/ 
Pagas  da  coulaur 


D 
D 
D 
D 


Pages  damaged/ 
Pagas  andommagdas 

Pages  restored  and/or  laminated/ 
Pagas  restaurtes  at/ou  paiiicuitea 

Pages  discoloured,  stained  or  foxed/ 
Pagas  d^coiortes,  tachatAes  ou  piqutes 

Pagas  detached/ 
Pagas  ditachtes 


r^  Showthrough/ 


D 


Transparence 

Quality  of  prir 

Quality  InAgaia  de  I'impression 

Includes  supplementary  matarif 
Comprand  du  materiel  suppi^mantaira 

Only  edition  available/ 
Saule  Mition  diaponibia 


I     I    Quality  of  print  varies/ 

I     I    Includes  supplementary  material/ 

I — I   Only  edition  available/ 


Pagas  wholly  or  partially  obscured  by  errata 
slips,  tissues,  ate,  hava  been  refilmed  to 
ensure  the  best  possible  image/ 
Las  pagas  totalament  ou  partiallement 
obacurcias  par  un  fauillat  d'errata,  una  paiure, 
etc.,  ont  At  A  filmtea  A  nouveau  da  fapon  it 
obtenir  la  meilleure  image  possibia. 


Th< 
poi 
of 
filn 


Ori 
be( 
thfl 
sio 
ot^ 
fin 
sio 
or 


Th( 
shi 
Tir 
w^ 

Ml 
dif 
eni 
bet 

rig 
rec 
mc 


This  item  is  filmed  at  tha  raduction  ratio  chackad  below/ 

Ca  document  ast  film*  au  taux  da  reduction  indiqui  ci-dessous. 

10X  14X  18X  22X 


26X 


30X 


y 


12X 


16X 


20X 


24X 


28X 


32X 


Tha  copy  filmed  here  has  boen  reproduced  thanks 
to  the  generosity  of: 

Law  Society  of  Upper  Canada 
Great  Library 


L'exemplaire  filmA  f ut  reproduit  grAce  A  la 
gAnArositA  da: 

Law  Society  of  Upper  Canada 
Great  Library 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  iceeping  with  the 
filming  contract  specifications. 


Las  Images  suivantes  ont  AtA  reproduites  avec  le 
plus  grand  soln,  compte  tenu  de  la  condition  at 
da  la  nettetA  de  i'exemplaire  filmA,  et  en 
conformity  avec  lea  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplalres  orijlnaux  dont  la  couverture  en 
papier  est  ImprlmAe  sent  filmAs  en  commenpant 
par  le  premier  plat  et  en  termlnant  soit  par  la 
derniAre  page  qui  comporte  une  empreinte 
d'Impresslon  ou  d'lllustration.  soit  par  le  second 
plat,  selon  le  caa.  Tous  les  autras  exemplalres 
orlginaux  sont  flimAs  en  commenpant  par  la 
premiAre  page  qui  comporte  une  empreinte 
d'Impresslon  ou  d'lllustration  et  en  termlnant  par 
la  dernlAre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contair  the  symbol  — ^>  (meaning  "CON- 
TINUED"), jt  the  symbol  V  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc..  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Un  dee  symboles  sulva^'^^  apparaftra  sur  la 
derniAre  image  de  ch«.|ue  microfiche,  selon  le 
cas:  le  symbols  — ►  signifle  "A  SUIVRE  ".  le 
symbols  ▼  signifle  "FIN". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
filmAs  A  des  taux  de  rAduction  diff Arents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  cllchA,  II  est  filmA  A  partir 
de  Tangle  supArieur  gauche,  de  gauche  A  droite, 
et  de  haut  en  bes,  en  prenant  le  nombre 
d'Images  nAcessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

c.  m 


C 


/ 


*> 


C.  %ii1 


AMERICAN 


CEIMmAL  BEPOKTS. 


A  SERIES  DESIGNED  TO  CONTAIN  THE  LATEST 
AND  MOST  IMPORTANT 

CRIMINAL    OASES 


DETERMINED  IK 


THE  FEDERAL  kW  STATE  COURTS  IN  THE  UNITED  STATES, 


AS  WELL  AS 


SELECTED    CASES, 

Important  to  American  Lawyers, 

-ROM  THE  ENGLISH,  IRISH,  SCOTCH  AND  CANADIAN 
Ll\W  REPORTS, 


I^^^OTES  AND  EEFERENOES. 


BY 


JOHN  GIBBONS,  LL.D., 

Of  the  Chicaqo  Bab. 


VOL.  YII. 


CHICAGO: 

CALLAGHAN   AND   COMPANY, 
Law  Book  Pubushers. 

1889. 


J.. 


w 


\ 


\y 


1 


Entered  according  to  Act  of  Congress,  In  the  year  eighteen  hundred  and  eighty-nine, 

By  CALLAGHAN  AND  COMPANY, 

in  the  office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


DAVID  ATWOOD, 

FRINTEB  AMD  StKREOTYPER, 
MADIBON,  WIS. 


MAY  2  8  1978 


TABLE  OF  CASES  REPORTED. 


t!'.'^- 


A. 

PAOB. 

Adams,  State  v 237 

Aiken,  Peoplo  v 345 

Allison  V.  Com 301 

Andrewa  v.  People 240 

Arnold,  Com.  v 210 

B. 

Baldwin,  State  v 377 

Banks  and  another,  State  v 526 

Beaudct,  State  v 84 

Bechdel,  State  ex  rel.  Lembke  et 

al.  V 227 

Beimel  v.  State 556 

Benedict  v.  State 11 

Billings  V.  State 188 

Bonnard  v.  State 469 

Brazil  v.  State 58 

Bryan,  State  v 604 

0. 

Cady  etal..  State  v 804 

Carney  v.  State 7 

Chapman  v.  People 568 

Chastang  v.  State 135 

City  of  Topeka,  State  ex  rel.  Cur- 
tis v 479 

Chio  Chiagk,  State  v 407 

Coates  V.  State 585 

Crum  V.  State 872 

D. 

Deitz,  State  v ; . .  22 

De  Leon,  People  v 314 

Demoussett,  People  V 1 

Dillon  V.  O'Brien  &  Davis 60 

Duggan,  State  V 220 


E. 

PAGE. 

Eichelberger,  Com.  v 324 

Emery,  State  v 202 

England,  Ex  parte 225 

F. 

Fitzgerald,  People  v 103 

Fitzpatrick,  Com.  v 100 

Flynn,  People  v 1^6 

Folwell  V.  State 288 

Frahm,  State  v 133 

Fulason,  State  v 495 

G. 

Garrett  et  al.  v.  State 469 

Gibson,  Regina  v 171 

Glover  v.  State 113 

Graham  et  al.  v.  People 529 

Gundy  V.  State 263 

H. 

Hair,  State  v 369 

Haley  v.  State 328 

Hardtke  v.  State 577 

Haskell,  Com.  v 533 

Heard  V.  State 74 

Horan,  State  v 191 

Hughes  V.  People 503 

.  I. 

Intoxicating  Liquors,  State  t...  291 
Ivey,  State  v 245 

J. 

Jackson  v.  State 80 

Johnson,  State  v 366 

Jones  V.  State 294 


'■■■    itiji.! 


V!)i;if 


■':  f^ff 


B"  ••;::■( 


IV 


AMERICAN  CRIMINAL  REPORTS. 


K. 


Kaelin  v.  Com 

Kennedy  v.  State.... 
Kirkpatiitk,  State  v. 

L. 


PAGE. 

422 
.  334 


Langton,  People  v. 

Leabo  v.  State 

Lee  Gam,  People  v 
Leonard,  Com.  v  . . 


439 

533 

61 

593 


M. 


Maney,  State  v 25 

Marchant,  State  v 217 

McChesney,  State  v 184 

McDonald  v.  People 137 

Meyer  V.  State 428 

Murphy  v.  State 364 

N. 

Nichols  V.  State 106 


Pagev.State 297 

Palmer,  People  v 399 

Parsons  v.  State 266 

Patterson  v.  State 306 

Patterson  v.  State 229 

Phillips  V.  State 318 

Piatt,  People  v 499 

Powell  V.  Com 33 

Presley  V.  State 343 


B. 

FAaE. 

Richmond  v.  People 541 

Riley,  Reffinii  v 97 

Riley,  People  v 600 

Roberts  v.  State 504 

Robinson  v.  State 203 

s. 

Schmidt,  Ex  parte 224 

Shiff,  State  v 240 

Slmlar  v.  State 509 

Slingerland,  State  v , 338 

Smurrv.  State 545 

Stanley,  Ex  parte ■ 313 

T. 

Thompson.  State  v 164 

Titus  V.  State 254 

Treadwell,  People  v 152 


V. 


Vaughan  v.  State. 


68 


w. 


Wallace,  Com.  v 179 

Watson  V.  State 64 

White,  Com.  v 192 

Wightman,  People  v 101 

Williams  et  al.  v.  State 443 


A( 
Al 

Al 

A( 

A( 

Al 

Al 

Al 

A 

A 

A 

A 

A 

A 

A 

A 

A 

i 
i 
I 


TABLE  OF  CASES  CITED. 


A. 

PAOE. 

Aaron,  State  v.,  4  N.  J.  (I^w),  235 311 

Abranis,  State  v.,  11  Oiv.,  l(l!i 68S 

Absence,  State  v.,  4  Port.,  .1!)" 4M 

Adams,  Com.  v.,  1  Gray,  4H3 490 

Adann,  State  v.,  80  Kan.,  311 511,  51,5 

Adams,  State  v.,  78  Me.,  4H(i  528 

Adams  v.  Gowan,  89  Iiid.,  M,)8 55i 

Adams  v.  State,  fl'i  Ala.,  177 75 

AddiiiKton,  State  v.,  77  Mo.,  110  .  .41,  4«,  51,  ra 

Ah  Sam,  State  v.,  14  Or.,  :|I7  2110 

Ah  Wee,  People  v.,  4H  Cat..  2:19 128 

Ah  Chew,  State  v.,  10  Xev.,  ."iO 44 

Alexander  v.  Com. ,  105  Pa.  St.,  1 801 

Alger,  Com.  v.,  7  Ciish.,  K\ 30,  ,'J7 

Allen,  State  v.,  47  Conn.,  121 310 

AllinK,  State  v.,  )2  (Jliio,  10 553 

Allen  V.  State,  'M  Ark., :« 20;» 

Allen,  State  v.,  57  la.,  431 31 

ALstron  v.  State,  II  Tex.,  39 899 

Anarchists'  Case,  0  Am.  Cr.  R..  570 150 

Anderson  v.  State,  104  Ind.,  407 503,  520 

Anderson,  People  v.,  41  C'al.,  05 102 

Anderson,  State  v.,  89  JIo.,  312 528 

Andrew.s,  Com.  v.,  143  Mass.,  23 170 

Andei-son,  State  v.,  103  Ind.,  170 117,  200 

Anderson  v.  State,  43  Conn.,  514,  .525. . . .  283 

Andrews,  Com.  v.,  2  Slass.,  499 323 

Anone,  Slate  v.,  8  Nott  &  McC,  27 553 

Anschicks  v.  State,  0  Tex.  App.,  534 587 

Archerv.  Rosa,  2Scam.,  803 650 

Arensberg,  People  v.,  105  N.  Y.,  123....  65 

Arnold's  Case,  Ifl  How.  St.  Tr.,  704 270 

Armstrong,  Nat.  B'k  v.,  di  Md.,  113 170 

Armstrong  v.  State,  7  Am.  Cr.  R.,  45. , . .  00 

Ash  V.  State,  81  Ala.,  70 »»,  81 

Ashe,  People  v.,  44  Cal.,  '388 699 

Askea  V.  State,  75  Oa.,  330 84 

Asplnwall,  Rex  V 99 

Atkins  V.  State,  CO  Ala.,  45 881 

Austin,  People  v.,  1  Parker,  Cr.  R.,  184   .  353 

Ayer,  Com.  v.,  3  Cush.,  150, 163 190 

B. 

Backarow,  State  v.,  88  La.  Ann.,  816 7 

Bacon's  Case,  1  Lev.,.  146 82 


PAO^. 
Baldbridge,  U.  S.  v.,  It  Fed.  Rep.,  K53. . .    441 

Bailey  v.  State,  4  Ohio  St.,  440 858 

Bainbridge  v.  State,  30  Ohio  St.,  8aj 383 

Baird  v.  Boehner,  72  la.,  318 613 

Baker,  State  v.,  34  Me.,  53 49€ 

Baker,  People  ex  rel.,  80  N.  Y.,  400 833 

Baker  v.  State,  4  Ark.,  50 853 

Ball,  Rtfxv 176 

Baldwin  v.  State,  13  Neb.,  01  283 

Bank  of  North  America  v.  McCall,  4  Bln- 

ney  (Pa.),  371 653 

Barbli-r  v.  Connelly,  113  U.  S.,  27 43 

Tiartour  v.  City  of  Louisville,  83  Ky.,  05.    493 

Barnett  v.  State,  100  Ind.,  171 655 

Barnett,  R»!X  v.,  3  C.  &  P.,  000 09, 70 

Barnett  v.  Harshbarger,  103  Ind.,  410.   . .    41fl 

Barker,  State  v.,  18  Vt.,  195 801 

Bart<m  v.  State,  07  Ga.,  a53 518 

Barlow,  Com.  v.,  4  Mass. ,439 82 

Bartlett,  State  v..  55  Me.,  8 iO 627,  603 

Bartlett  v.  State,  23  Ohio  St.,  009 38i 

Bartemeyer  v.  lowo,  18  Wall.,  138. .  .37, 48,  47 

Bass  V.  State,  37  Ala.,  409 31 

Batten  v.  State,  80  Ind.,  .394,  402 420,  548 

Bearse,  Com.  v.,  132  Mass.,  543 88 

Beard,  Ex  parte,  41  Tex.,  834 10 

Beatty  V.  Brummett,  94  Ind.,  70 183 

Beaton,  State  v.,  79  Me.,  814 205 

Beer  Company  v.  Massachusetts,  97  U. 

S.,  23 43,50 

Behlmer,  State  v.,  80  Ohio  St.,  572 213 

Behler  v.  State,  1 13  Ind.,  1  lO 800 

Bell  V.  State,  43  Ind.,  8.35 118,  181 

Belllngham's  Cass 27C 

Bell'sCase,  4 Baxt.,  426 881 

Belencia,  People  v.,  21  Cal.,  348 441 

Benstein  v.  State,  8  Lea,  109 691 

Benton  v.  State,  30  Ark.,  388 516,  610 

Bennett  v.  People,  90  III.,  002 851 

Berry  v.  People,  36  111.,  423 493 

Berry  v.  State,  31  Ohio  St.,  819 8-11 

Bertholf  v.  O'Reilly,  74  N.  Y.,  809 43 

Bertin,  State  v.,  84  La.  Ann.,  46 BIB 

Bessette  v.  State,  101  Ind.,  85 680 

Beyer  v.  People,  86  N.  Y.,  870 817 

Blbbv.  State,  84  Ala.,  18 SIS 

Bird,  State  v.,  14  Qa.,  43 310 


I 


VI 


AMERICAN  CRIMINAL  REPORTS. 


PAOE. 

Bishop,  State  v.,  78  N.O.,  44 W 

Black  V.  State,  50  Wis.,  471 81 

Blair  v.  Forohaml,  100  Mass.,  130.  .43,  483,  4«i 

B\a<\i,  Com.  v.,  12  Allon,  1H8 &••'' 

Blnoljliuni  v.  State,  3  Head,  fiOO B.V1 

Boai-il.  etc.,  v.  Seaton,  TO  Ind.,  IBS MS 

BoKrtii  V.  State.  HI  Aia.,  449 SC* 

BoRKH  V.  State,  H  Iml.,  40'! B17 

Bolian  V.  State,  lit  Kan.,  5fi SB!) 

Bolinimn  v.  State,  (1  Am.  Cr.  R.,  487 149 

Bolton  V.  Corporation  of  Liverpool,  6 

EMff.  Cli.,  407 21 

BollinKer,  People  v.,  71  Cal.,  17 31 

Bonkar  v.  People,  2  Am.  Cr.  R.,  70 M3 

Bonney,  People  v.,  10  Cal.,  420 51(1 

Boose  V.  State,  10  Ohio  St.,  575 881 

Boothe  V.  State,  4  Tex.  App.,  202 00 

Boring  v.  Williams,  17  Ala.,  510 491 

Boswell's  Case 271 

Boswell  V.  State,  03  Ala.,  307 383,  287 

Boswell,  State  v.,  104  Ind.,  541 517 

Bothe  V.  Railway  Co.,  87  Ohio  St.,  149. . .  10 

Bowler  v.  State,  41  Miss.,  570 450 

Bowers  v.  Fitzraiulolph,  Add.  (Pa.),  215  488 

Bowen  v.  Lease,  5  Hill,  221 501 

Bowei-8  V.  State,  21  Te.w  App.,  54S 872 

Boyd  V.  U.  S.,  110  U.  S.,  010 130 

Boynton,  Com.  v.,  110  JIass.,  »12 31 

Boyle  V.  State,  .57  Wis. ,  472 SM 

Boyle  V.  State,  105  Ind.,  400 420,  427 

Bradley  v.  State,  31  Ind.,  492 282 

Brady.  People  v.,  50  N.  Y.,  182 228 

Bradshaw  V.  State,  17  Neb.,  147 512 

Bradsliaw  v.  Com.,  10  Bush,  570 177 

Braniion,  State  v.,  55  Mo.,  03 331 

Branstetter,  State  v.,  05  Mo.,  149 681 

BreckenridRe,  State  v.,  07  la.,  204 198 

Brennan  v.  People,  15  III.,  fill ... .  223,  448,  573 
Brennan's  Case,  10  Adol.  &  E.  (X.  S.), 

492 233 

Bressler  v.  People,  117  III.,  422 304 

Brewer,  People  v.,  27  Mioli.,  134 611 

Brewer  v.  State,  83  Ala.,  113 10) 

Brewer  V.  State,  0  Lea.  198 550 

BrifTRS  V.  Com.,  82  Va.,  .5.>» 178 

Britton  v.  State,  77  Ala..  202 2!K) 

Britton,  U.  S.  v.,  107  U.  S.,  055-0,59 201 

Brooks,  State  v.,  0  Ala.,  10 223 

Brooks  V.  State,  90  Ind.,  428 428 

Brosnalian,  In  re,  4  Am.  Cr.  R,,  10 .37,  .58 

Brothei-s  v.  State,  22  Tex.  App.,  447 3:W 

Brown  v.  State,  18  Ohio  St.,  490 511 

Brow  V.  State,  103  Ind.,  laS 520,  5i4 

Brownell  v.  People,  38  Mieh.,  733 3gj 

Brown  V.  Brown,  8  Met.,  573. 395 

Brown,  State  v.,  3  Strobh.,  516 »4i 

Browning  v.  Ilight,  78  Ind.,  257 437 

Brown  v.  State,  5  N.  E.  Rep.,  900 437 

Brownv.  Com..  14Bush.398 401 


PAOE. 

Bryant,  State  v.,  10  Yerg.  (Tenn.),  537. .  83» 

Buckley,  Com.  v.,  145  Mass.,  181 !M4 

Buckner,  State  v.,  35  Mo.,  107 BOO 

Bngbee,  Com.  v.,  4  f Iray.  200 2I» 

Bulla,  State  v..  89  Mo..  .'i95 528 

Bulliner  et  al.  v.  Peoiile,  05  III.,  894 BJK) 

Bum,  Regina  v..  12  Cox,  C.  C,  810 151 

Blimp  V.  Com,,  8  Mete,,  5*1 830 

Bunch  V,  Slate,  1  Tex.,  009 'iH 

Bm-ney  v.  State,  21  Tex.  App.,  503 100 

Burchett  v.  Com.,  65  Ky 443 

Burklmrd  v.  State,  18  Tex.  App.,  590. .. .  503 

Burroughs'  Appeal,  .53  Pa.  St.,  374 4!K» 

Burnett  v.  State,  RS  Ala..  40 501 

Burnham,  State  v.,  15  N.  II.,  390 151 

Burnett  v.  State,  14  Tex.,  435 10 

Bush  V.  State,  1  Tex.,  455 »44 

Butler  V.  State,  97  Ind.  ,378 517,  551 

Butler  V.  People,  4  Denio,  08 109 

Butchers'  Union  Co.  v.  Crescent  City  Co., 

IIIU.S.,740 48 

Bykerdike,  Rex  v.,  1  Moody  &  R.,  170.. . .  151 

0. 

Cabbage's  Case,  Russ.  &  R..  302 840,  ."Ml 

Cain's  Case,  30  W.  Va.,  081 655 

Cain,  State  v.,  1  Hawks,  .333 240,  ai7 

Callahan  v.  State,  31  Ohio  St.,  .300 443 

Cancemi  v.  People,  10  N.  Y.,  .501 590 

Cantieny,  State  v.,  0  Am.  Cr.  U.,  418  .. .  368 

Campbell,  Com.  v.,  7  Allen,  541 673 

Campbell  v.  State,  53  Ala.,  80 461 

Cameron,  Ex  parte,  81  Ala.,  87 237 

Capp,  Com.  v.,  48  Pa.  St.,  .53 181 

Card  V.  State,  Ift)  Ind.,  415  140,  108 

Carew  v.  Rutherford,  100  JIass.,  1 151 

Carll,  United  States  v.,  105  U.  S.,  Oil . . . .  201 

Carlisle,  Com.  v.,  ,Iour.  Jur.,  225 151 

Carpenterv.  People,  8  Barb.,  003 411 

Carpmael  v.  Powis,  1  Phil,,  (itu 20 

Carroll,  State  v., :«  Conn.,  449 053 

Carroll  v.  State,  5  Xob.,  1 515 

Carr  v.  State,  iSi  Neb.,  7 10 4,30 

Carter  V.  State,  2  Ind.,  617 891 

Case  V.  State,  3  Ind.,  1 551 

Casey,  People  v.,  05  Cal.,  201 1,30 

easily  v.  State,  .32  Ind.,  02 540,  518,  519 

Caton,  Reg.  v.,  12  Cox,  C.  C,  034 447 

Cavanaugh's  Ca.se,  3  Park.  Cr.  C,  058 ... .  232 

ChablK)ck,  Cora,  v.,  1  JIass.,  143 91 

Chaffln,  State  v.,  2  Swan,  494 833 

Chamberlain,  State  v.,  80  Mo.,  120 E28 

Chamberlain  v.  Masterson,  20  Ala.,  871 . .  230 

Champeau,  State  v.,  58  Vt.,  313 206 

Chandler  v.  Le  Barron,  45  Me.,  530 169 

Chapman,  Regina  v. ,  8  Car.  &  P. ,  500 ... .  561 

Chapman,  Com.  v.,  11  Cush.,  422 543 

Charles  v.  State.  11  Ark..  889 668 


TABLE  OF  CASES  CITED. 


Tii 


PAOB. 

ChnBe,  Com.  t.,  125  MoBg.,  209 49 

Chathams,  Com.  v.,  no  Pa.  St.,  181 320 

Cheek  V.  Mor.Nat.  B'k,»HeiHk.,489 SBC 

Chesley,  Com.  v.,  lOT  Mass.,  223 202 

CliifUKO  R.  R.  Co.  V.  IledRt's,  105  Intl.,  388    123 

Choate,  Com.  v.,  10,')  Mass.,  461 880 

Cliureli,  Com.  v.,  1  Pa.  St.,  lO.'i 1»} 

City  of  Parsons  v.  Limlsay,  20  Kan.,  420.    883 
City   of  Independence  v.  Trowalle,  15 

Kan.,  73 485,486 

City  of  Newton  v.  Atchison,  81  Kan.,  151    486 

City  of  Clierokee  v.  Fox,  »»  Kan.,  10 480 

Chillln,  U.  S.  v.,  97  U.  8.,  5-JO 601 

Clapp  V.  Balch,  3  Me.,  219 109 

Clark,  Reg.  v.,  0  Cox,  C.  C.  330 817 

Clark  V.  State,  23  Tex.  App.,  013 880 

Clarke,  State  v.,  54  Mo.,  17 493 

Clark,  State  v.,  82  Ij».  Ann.,  558 511,  649 

Clark,  Slate  v.,  .lO  la.,  108 549,  551 

Clark,  State  v.,  23  N.  H.,  429 11)2 

Clark's  Case,  9  Wend.,  213 215 

Clark,  Reg.  v. ,  Dears.  Cr.  Cas. ,  198 239 

Clark  V.  Stale,  09  Wis.,  305 203 

Clark,  State  v.,  5  Dutcher,  90 200 

Clark  V.  Com.,  29  Pa.  St.,  138 553 

Clark  V.  State,  4  Ilmiiph.,  25» 600 

Clark,  People  v.,  33  Mich.,  112 611 

(Jiarfoss  V.  State,  4  Am.  Cr.  R.,  400 201 

Clary  v.  State,  SSi  Ark.,  606 fSSO 

Cleaves,  State  v.,  59  Me.,  298 627 

Clewes,  Hex  v.,  4  Car.  &  P.,  221 402 

Cline  V.  I.indspy,  110  Ind.,  a37 G(Xi 

Clipperly,  Pc. .pie  v.,  101  N.  Y.,  0.34 157 

Cliver  v.  State,  45  N.  J.  Low,  40 687 

Close  V.  Saiiim,  27  la.,  >W3 614 

Clunip,  State  v.,  10  Mo.,  USTi 412 

Clynier  v.  Lyttier,  1  W.  Bl.,  315  95 

Coe,  Com.  v.,  115  Mass.,  504 105,  108,  195 

Coleman  v.  State,  59  Miss.,  481 609 

Cole,  People  v.,  0  Parker,  C.  R.,  095 22(i 

Cole  V.  Hall,  ia3  III.,  30 480 

Collier  v.  Simpson,  5  Carr.  &  P.,  400 390 

Combs  V.  State,  75  Ind.,  215 520,  521 

Conliii  V.  State,  27  Vt.,  318 491 

Conn  V.  Amold,  0  Cr.  Law  Mag.,  61 518 

Connors  v.  People,  50  N.  Y.,  240 529 

Cook  V.  Skelton,  20  Rl.,  107 651 

Cook,  U.  S.  v.,  17  Wall.,  108 201 

Cook,  Com.  v.,  6  Serg.  &  R.,  677 200 

Cook  V.  Smith,  51  la.,  636. 549, 551 

Cooper,  Ex  parte,  3  Tex.  App.,  489 485 

Cornwall,  State  v.,  27  Ind.,  120 480 

Corson,  State  v.,  59  Me.,  141 497 

Costello  V.  Crowell,  i:»  Mass.,  352 165 

Costello  V.  Crowell,  139  Mass.,  590.  .105, 107, 195 

Costello,  Com.  v.,  120  Mass.,  358 197 

Council,  State  v.,  1  Tenn.,  305 Wl 

Cowan  V.  State,  22  Neb.  ,519 436 

Cox,Statev.,0Ired.,440 246 


PAOB. 

Cox  and  Railton,  The  Queen  v.,  6  Am.  Cr. 

R.,  140 28 

Craig  V.  City  of  Philadelphia,  8  Morris, 

265 89 

Crawford,  State  v.,  2  Dev.,  423 872 

CrlsHeld  v.  Porlne,  16  Ilun,  203 106 

Cronin,  People  v.,  84  Cal.,  191 843 

Cromwell  v.  Stephens,  2  Daly,  15,  21  ... .  220 

Crozler  v.  Cundey,  0  B.  &  C,  2:J3 09 

Crookham  v.  Stole,  5  W.  Va.,  510 90 

Cross,  State  v.,  12  la.,  00 687 

Crosswell  v.  People,  15  Mich.,  427  687,  588,  689 

Crowley,  People  v.,  102  N.  Y.,  2:14 684 

Cucuel,  State  v.,  81  N.  J.  (Law),  219  ..  .  258 

Culver  V.  Balch,  23Vt.,018 204 

Cunninghom  v.  Slote,  50  Miss.,  209 283 

Curlln  V.  Stole,  23  Tex.  App.,  081 a30 

Cutter,  State  v.,  7  Vroom,  125 290 


D. 


Daley,  State  v.,  53  vt.,  442 699 

Dano,  Stotev.,  59Vt.,flI4 24 

Doncy,  State  v.,  &3  N.  C,  008 587 

Daniels  V.  Shields,  38  111.,  197 531 

Daniell,  People  v.,  50  N.  Y.,  374 491 

Dark,  Statev.,8Blackf.,  620 502 

Dassler,  In  re,  85  Kan.,  678 488 

Dovis,  State  v.,  80  N.  C,  881 518 

Davis,  U.  8.  v.,  0  Blotch.,  404 518 

Davis  V.  Fish,  1  Greene  (la.),  406 549 

Davis,  Stale  v.,  77  N.  C,  483 89 

Davis,  Com.  v.,  11  Pick.,  434 144 

Davis,  Slate  v.,  12  R.  I.,  492 222,  233 

Davis  V.  Stale,  45  Ark.,  401 8.30 

Davis,  State  v.,  38  N.  .1.  Law,  177 310 

Davis  V.  State,  2  Tex.  App.,  435 493 

Davis,  Com.  v.,  140  JIass.,  485 494 

Dovidson,  Slote  v.,  .38  Mo.,  874 a31 

Dawson  v.  State,  29  Ark.,  110. .. .  587,  588,  689 

Dowson,  Stole  v.,  90  Mo.,  140. ...  21 

Day,  Slate  v.,  74  Me.,  321 495 

De  Bar,  Stale  v.,  68  Mo.,  395 493 

Dee,  The  Queen  v.,  14  L.  R.,  Ir.,  408 584 

DeEfenbocher,  State  v.,  51  Mo.,  20 450 

Dejaruette  v.  Com.,  75  Va.,  807 383 

Densmoro  v.  Slate,  07  Ind.,  300 420 

Dewolf,  Slate  v.,  8  Conn.,  93 692 

Dignowilty  v.  Slate,  17  Tex.  ,5.30 839 

Dodge  V.  People,  4  Neb.,  230 660 

Dodge  V.  Kinzy,  101  Ind.,  102 79 

Dolby,  Eex  v.,  2  Barn.  &  C,  101 810 

Donaldson,  Stale  v .,  32  N.  J.  Low,  151 .. .  151 

Donnelly  v.  Decker,  58  Wis.,  401 44 

Donovan,  Stale  v.,  4  Am.  Cr.  R.,  25 , .  61 

Donohue,  People  v., 84  N.  Y.,  438 21S 

Doo  Woon's  Case,  18  Fed.  Rep.,  898 215 

Douglass  v.  Paclflc,  etc.,  Co.,  4  Cal.,  304  188 

Dougherty,  State  v.,  87  Vt.,  825 491 


i 
i 


via 


AMERICAN  CRIMINAL  REPORTS. 


PAOS. 

Dowe,  Statev.,  27In.,  O 1H.1 

Downey  v.  Hendrlo,  4fl  Mich.,  408 11-' 

Duoher  v.  Stote,  10  Ohio,  JXW Ill,  US 

Ducher  V.  State,  18  Ohio,  315,  810 US 

Duffy  V.  People,  0  IIIll,  73 4!)1 

Dufour,  State  v.,  03  Iml.,  Blir ISl 

Dunoon,  Stote  v.,  0  Ired.,  SIW W) 

Duiinv.  State,  SArk.,  S-JtP 5W 

Dunn  V.  Stnte.  45  Ohio  St.,  349 6i)S 

Dunaway  v.  People,  1 10  111.,  .113 411 

Durkee,  U.  S.  v.,  1  McAU.,  1% 3-18 

Drew,  Com.  v.,  3  Cusli.,  STII 202 

DriscoU,  People  v.,  107  N.  Y..  414 407 

Dmltt,  Reg.  v..  Cox,  C.  C,  6i)8 151 

Dyer  v.  State,  11  Lea  (Tenn.),  509 2S3 

Dyers  v.  Com.,  43  Po.  St.,  Hit 400 

Dyke,  Reg.  v.,  7  Car.  &  P.  201 420 

Dyson  V.  State,  26  Miss.,  803 881 


E. 


Eastman,  Com.  v.,  1  Cush.,  189,  816 195 

East,  1  P.  C,  237 445 

East,  1  P.  C,  411 82 

East,  S  P.  C,  977 197 

East,  1  P.  C,  107 201 

Eccles,  Rex  v.,  1  Lench,  Crown  C,  274. .  151 

Edwards  v.  State,  25  Ark.,  410 456 

Edwards,  Slate  v.,  19  Mo.,  074 41S 

Egan,  Territory  v.,  3  Dak.,  119 442 

Elklns,  State  v.,  03  Mo.,  159 61 1 

Elliott  V.  Plattor,  4.3  Ohio  St.,  203 10 

Elliott,  State  v.,  43  la.,  4Kfl 81 

Elliott,  People  v.,  100  N.  Y.,  288 80 

Ellis  V.  The  King,  8  Heard,   Leading 

Cr.  C am 

Emerson,  State  v.,  48  la.,  174  335 

Engleman  v.  State,  8  Ind.,  91 119,  121 

Entick  V.  Carrington,  19  State  Trials, 

1029, 100.3-4 78 

Epps  V.  State,  102  Ind.,  5,39 511, 520, 567 

Erie&  N.  E.  R.  R.  Co.  v.  Casey,  86  Pa.  St., 

88'' 35,48 

Erwlii,  People  v.,  4  Denio,  129 494 

Esdaile,  Reglna  v.,  1  Fost.  &  F.,  218 144 

Evans  v.  Evans,  1  Hagg.  Con.,  85 402 

Everhardt,  People  v.,  103  N.  Y.,  591 81 

Evers,  State  v.,  49  Mo.,  542 185 

EvansviUe,  etc.,  H.  R.  Co.  v.  Cochran,  10 

Ind.,  500 614 

P. 

Fagin,Peoplev.,66Cal.,584 836 

Fahey,  State  v.,  35  La.  Ann.,  9 6ii 

Falrc'  Id,  People  v.,  48  Mich.,  87 804 

Fancher,  State  v.,  71  Mo.,  461 186, 187 

Farler,  Reg.  v.,  8  Car.  &  P.,  106 '419 

Farmer,  State  v.,  4  Ired.,  234 590 


PiOK. 

Farr,  State  v.,  88  Iowa.  .Ml 67il 

Farren,  Com.  v..  01  Mass.,  480 49 

Fnsslnow  v.  State,  8ft  Ind.,  Ha 66!.' 

Favors  v .  Stote,  20  Tex.  App.,  150 404 

Fayette  v.  Chestervllle,  77  Jle.,  33 1(W 

Feaster  v.  Woodflll,  2!)  Ind.,  493 B53 

Felder  V.  Stote,  2;i  Tex.  App.,  477 177 

Felter,  State  v.,  23  Iowa,  07 809,  S81 

Fenlason,  State  v.,  79  Me.,  117 800 

Fenlason,  Slate  v.,  78  Jle.,  495 W,  79 

Ferguson  v.  Com.,  83  Ky 497 

Ferguson,  Rex  v.,  8  Storkie,  489 181 

Fiddler's  Case.  7  Humph.,  800 888 

Fife  V.  Com.,  29  Pa.  St.,  489 170,  488 

Fight  V.  Stote,  7  Ohio,  180 818 

Fild,  Rex  v.,  Berks  Sp.  Ass.,  1838 419 

Finch  v.  State,  81  Ala.,  41 413 

Fisher  v.  People,  20  Harh.,  0.53.  401 

Fisher,  People  v.,  1 1  Wend.,  0 151 

Fisher,  People  v.,  14  Wend.,  1 803 

Fitzgerald  v.  State.  14  Mo.,  413 41 1 

Fizell  V.  Slate,  25  Wis.,  301    687 

Flanagan  v.  State,  19  Ala.,  5(6 812 

Flattery,  The  Queen  v.,  2  Q.  B.  D.,  410  . .  681 
Flint  River  Steamboat   Co.  v.  Foster, 

5Ga.,  104 S4 

Flower  V.  WItkoo.sky,  37  N.  W.  R.,  8(M. . .  .300 

Floyd  V.  Eotonton,  14  Go.,  851 490 

Flynn,  Stote  v.,  .30  N.  II.,  04 136 

Fly nn  v.  State,  43  Ark. ,  880 a33 

Flye,  State  v.,  20  Me.,  813 853 

Folden  v.  State,  13  Neh.,  328 507 

Folwell,  State  v.,  14  Kon.,  105 883 

Ford  v.  State,  71  Ala.,  885  442,  451 

Forster,  Re;;ina  v..  Dears.  Cr.  C,  450. ...  105 

Foster  v.  State,  8  Tex.  Ai)p.  ,219 406 

Foster  v.  Alden,  21  Mich.,  508 570 

Foster  v.  Stott  81  Ala.,  451 220 

Foster  v.  Mackoy,  7  Mete.,  5;J8 168 

Fowler,  Stote  v.,  8  Fost.,  184 ssa 

Fowler  v.  Stote,  3  Heisk.,  154 828 

Froncis,  Rex  v.,  2  Stronge,  1014 829 

Frank  v.  Stote,  27  Ala.,  37 440 

Franklin  v .  State,  108  Ind.,  47 800 

Frozer  v.  Clifford,  94  Ind.,  482 79 

Freeman,  State  v.,  38  N.  H.,  426 494 

Frisby,  State  v.,  00  Mo.,  630 499 

Frost,  Regina  v.,  9  C.  &  P.,  129 69, 70 

Frost  V.  Com.,  0  B.  Mon.,  802 491 

Fry  v.  State,  03  Ind.,  662 44 

G. 

Gagg  V.  Vetter,  41  Ind.,  828 514 

Gaines  v.  Com.,  69  Pa.  St.,  319-380 404 

Gaither  v.  State,  81  Tex.  App.,  588 405 

Gallinger  v.  L.  S.  Traffic  Co.,  67  AVis.,  680  1 13 

Gandy  v.  SUte,  21  Ind.,  474 498 

Oandolpho  v.  State,  33  Ind.,  439 118 


TABLE  OF  CASES  CITED. 


ix 


»Aai. 
Oandoiro  v.  State.  11  Ohio  St.,  1H. ...  OJl,  (113 

Ottiinoii,  Pwiplu  v.,  Ut  Cal.,  470 (KM 

OarlHitt,  I'f'ople  v.,  17  Mloli.,  0 WKI 

Hiirlick  V.  Diinn,  «  Ala  ,  401 W8,  MO 

Oiuri'tt  V.  Stut«,  (IMo.,  1 411,418 

(Jiiriftt,  r«'oi>Ic  v.,  m  N.  W.  Rpp.,  i»». . .    800 

Onrn-tt  v.  Statf,  109  Ind.,  S87 77 

GaitliHalti',  State  v.,  ,1  Zah.,  143 230 

tli'iiaro  Hfili>  V.  State,  88  Ti'x.  App.,  033.    B83 

0II)1)»,  Coin,  v.,  4  dray,  140 608 

Glbw>ii  V.  State,  81  Tex.  App.,  414 405 

OibHoii  V.  CiiiL'lniiati  EiHiulrer,  5  Cent. 

Law  J.,  .3H0 805 

Gilbert  V.  State,  81  liid.,  474 608 

Giles.  Com.  v.,  1  Omy,  4aS U»,  1 15 

Gill,  htat<^  v.,  14  S.  C,  41.1 8(«1 

Gill  V.  People,  48  HI.,  381 638 

Gill  V.  Sc-rl veils,  7  Term  R. ,  87 8(1 1 

Gillan  v.  State,  47  Ark.,  5.Vi 300 

Ollroy  V.  Com.,  10.-il»o.  St.,  4SI IHI 

Gleason,  I'eople  v.,  1  Nov.,  170 31 1 

Glovor'H  Case,  Kf.t  Jlass..  310 8:10 

Gonzales,  Ptniple  v.,  71  Cal.,  509 4(1H 

Ooodliue  V.  People,  i»4  111.,  40 ail 

Goodwin,  State  v.,  6  Am.  Cr.  R.,  1 7 

Goodwin  v.  State,  iKl  Ind.,  !),V» 48ll,  487 

Oonlon,  Slate  v..  00  Mo.,  3S3 4!W 

Goss  V.  State,  40 Tex.,  .580 60(1 

Gove,  State  v.,  3  N.  II.,  tm 4.1!) 

Graham,  State  v.,  4  Am.  Cr.  R.,  870 801 

G  raham  v.  State,  40  A  la. ,  (W.) 600 

Graves  v.  State,  4  Am.  Cr.  H.,  :Wfl 2(K) 

Oiavett  v.  State.  74  Ga.,  I'.U 0 

Gray,  State  v.,  19  Nev.,  813 409 

Greene,  State  v.,  00  la.,  II 607 

Greene  v.  State,  17  Tex.  App.,  395 405 

GreenoiiKli  v.  Gnskell,  7  Eng.  Ch.,  98 81 

Oreenfleld  v.  People,  Kt  N.  Y.,  75 03,  3H5 

Greer,  State  v.,  88  W.  Va.,  8(10 565 

GreRory  v.  State,  4(1  Ala. ,  151 841 

GrilTen  v.  State,  70  Ala.,  89 591,  598 

Grimth  V.  State,  .SO  Ind.,  400 118 

Groves  et  al..  State  v.,  15  R.  I.,  808 67 

Guest,  Slate  v.,  100  N.  C,  410 01 

Guidiee,  People  v.,  100  N.  Y.,  503 304 

Guil^eau,  U.  S.  v.,  10  Fed.  Rep.,  101 280 

Guinberts  v.  Adams  Exp.  Co.,  28  Ind., 

181 552 

Omn  V.  Collins,  43  Ind.,  271 189 

Gutierrez,  Slatts  v.,  15  La.  Ann.,  190 490 

H. 

Haas  V.  Shaw,  01  Ind.,  884.  79 

Hackett,  Com.  v.,  2  Allen  (^lasa.),  141. . .    375 
Hadfleld's  Case,  27  How.  St.  Tr.,  1288  279,  287 

Hair  v.  State,  4  Am.  Cr.  R.,  127 507 

Hale,  State  v.,  180re.,858 836 

Haley  V.  State,  03  Ala.,  80 806 


PAOR. 

Hall,  Com.  v.,  4  Allen,  805.  800 ...  195 

Haller  v.  Sheridan,  8t  Ind,,  491 480 

Hall,  Com.  v.,  3  Pick.,  808 844 

Hall,  People  v.,  48  MIeh.,  486 851,  S.'iO 

Hall  V.  State,  8  Ind.,  4:19 8.10 

llalsti'd  V.  State,  IV  Vrooin,  5.58 890 

Hamilton  v.  People,  89  Mluh..  ;:il  . . .  119,  8,58, 

833,670 

Hamilton  v.  State,  M  Miss.,  210 839 

Hammond's  Case,  2  Me.,  88 107,  100 

Hancock  V.  State,  14  Tev,  Vpp.,  303 517 

Hanson,  State  v.,  80  Me    :JI0 SOO 

Hanes  v.  WorthliiRion,  14  Ind.,  330 658 

Harden  v.  Stote,  88  Ind.,  317 293 

Harding,  U.  8.  v.,  1  Wall.  .Ir  ,  127 518 

Hardy,  Com.  V,,  8  Mass.,  :10.> 598 

Hallow,  Com.  v.,  110  Mass.,  Ill 688 

Harman,  Com.  v.,  4  Pa.  St.,  873 4.T8 

Hariier  v.  State,  43  Ind.,  405 651 

Harris,  ReRiiia  v.,  1  Car.  &  M,,  ilUl IM 

Harris  v.  State,  50  Ala.,  187 .813 

Harris,  State  v.,  01  N.  C,  0.50 218 

Harris  v.  State,  18  Tex.  App.,  887 283 

Harris  v.  State,  8  Tex.  App.,  109 448 

Harris  v.  Gest,  4  Ohio  St.,  409 5W 

Harris,  State  v.,  SM  La.  Ann.,  118  611 

Han-iiiRton  v.  State,  19  Oldo  St.,  201. .. .  699 

Harrison  v.  State,  80  Tex.  App.,  387 405 

Hart  v.  State,  15  Tex.  App.,  S(i8 401 

Hni-t,  State  v.,  5  Am.  Cr.  U.,  00 591 

Hastings,  State  v.,  5:1  N.  H.,  101 108 

Hann,  People  v.,  44  Cal.,  lilO .  188 

Hawkins,  State  v.,  8  Port,  f Ala.),  401  ., .  841 

Hawkes,  Com.  v.,  183  Muss.,  ,58.5 553 

Hawthorne  V.  People,  109  111.,  308 44 

Hawkins,  P.  C,  4,  p.  489 81 

Hayden,  Statev.,  131a.,  11    803 

Hayes,  State  v.,  (17  la.,  87 607 

Haynes.  State  v.,  71  N.  C,  79 00 

Hayues'  Case,  3.S  Gratt.,  940 178 

Hays  v.  State,  77  Ind.,  4:0 SOO 

Heady  v.  Vevay,  etc.,  T.  P.  Co.,  53  Ind., 

117 514 

Hedley,  Ex  parte,  31  Cal.,  108 100 

Heedv.  State,  85  Wis.,  431 830 

Hegelerv.  Henckell,  27Cal.,  491.. 10 

Heilman  v.  Com.,  81  Ky.,  4.57  590 

Heine  v.  Com.,  01  Pa.  St..  145 599 

Helm,  Statev.,  0  Mo.,  803 185 

Hcndy,  Regina  v.,  4  Cox,  C.  C,  243  103 

Hendrie  v.  KaltholT.  48  Mich.,  :^00 480 

Henning  v.  State,  100  Ind.,  380 800 

Hennessey,  State  v.,  8;^  (.Hiio  St.,  339  .. .  888 

Hennessey,  State  v.,  55  la.,  899 81 

Henry,  Statev.,  59 la., 391  353 

Henry,  Stote  v.,  5  Jones  (N.  C),  05 699 

Henry,  State  v.,  48  la.,  403 330 

Henry,  Com.  v.,  118  Mass.,  400 197 

Benslie  v.  State,  8  Heisk.,  203 561 


AMERICAN  CRIMINAL  REPORTS. 


PAGE. 

Hetzep  V.  People,  4  Col.,  45 493 

Hiokey  v.  State,  83  Ind.,  21 331 

Hicks,  People  v.,  53  Cal.,  &"i4 18~ 

Higgins  V.  State,  64  Ind.,  419 20t> 

Hilands  V.  Com.,  Ill  Pa.  St.,  1.  .201, 202, 207, 201 

Hill,  Com.  v.,  4  Allen,  mi 314 

Hill,  People  v.,  10  Johns.,  05 413 

Hill  V.  State,  8  Tex.  App.,  1 13 4Cfl 

Hilton  V.  Eckei-sloy,  0  El.  &  Bl.,  47 151 

Hinds,  Com.  v.,  101  Mas-s.,  200, 210 19() 

Hines  v.  State,  -M  Ohio  St.,  134 15 

Hinton  v.  Crenm  City  R.  Co.,  05  Wis.,  .331  113 

Hirth,  State  v.,  07  Wis.,  308 503 

Hodgep.  V.  Slate,  22  Tex.  App.,  415 200 

Hoffmann  V.  State,  05  Wi.s.,  40 113 

Hogan  V.  State,  .30  Wis.,  220 582 

Hoge  V.  People,  117  111. ,  35 3.30 

Holliday  v.  Cohen,  34  Ark.,  707 012 

Holli<lay  v.  People,  4  Oilman,  111 500 

HoUey,  Com.  v.,  3  Gray,  4.58, 459 240 

HoUoway's  Case,  1  Denison,  Cr.  Cas.,  370  3-11, 

312 

Hollenbock  v.  Todd,  119  111.,  513 22 

Hoist  V.  Roe,  3fl  Ohio  St.,  340 480 

Holt  V.  State,  9  Tex.  App.,  572 177 

Homer  v.  Wallis,  11  Mass.,  309 109 

Hopkins,  Reg.  v.,  8Car.  &  P.,  ,591 402 

Hopkins,  Reg.  v.,  8  Car.  &  P.,  254 314 

Hopkins,  State  v.,  05  la.,  210 330 

Hopkins  V.  State,  10  Lea,  204 ,511 

Hopkins  V.  Scott,  SOMo.,  141 187 

Hopldns  V.  Com.,  50  Pa.  St.,  9 179 

Hopps  V.  People,  31  111.,  .385 282 

Hopson,  Matter  of,  40  Barb.,  40 282 

Hornbeck  v.  State,  35  Ohio  St. ,  277 .591 

Houghton,  U.  S.  v.,  14  Fed.  Rep.,  544 441 

Houser  t.  State,  58  Ga.,  78 3(i'j 

Howard  v.  State,  23 Tex.  App.,  205. . .  .406,  4(i8 

Howe  V.  Treasurer.  37  N.  J.  Law,  145. . .  490 

Howe,  State  v.,  100  N.  C,  419  259 

Hubbard  v.  State,  72  Ala.,  104 4.50 

Huffman  v.  Cauble,  80  Ind.,  591 552 

Huffsmith  v.  People,  8  Col . .  175 4r3 

Hughes  V.  State,  75  Ala.,  31 445 

Hughes,  State  v.,  2  Ala.,  102 ,5ce 

HuUng  V.  State,  17  Ohio  St.,  ,583 112 

Hunter,  Rex  v.,  Russ.  &  R.,  511 192 

Hunter  v.  People,  1  Scam.,  453 51l 

Hunt  V.  Elliott,  80  Ind.,  245 53a 

Hunt,  Com.  v.,  4  Mete,  111,  128 151 

Hurd  V.  People,  25  Jlich.,  416 661 

Hurst,  People  v.,  41  Mich.,  .328 562 

Hutcliinsou  v.  Lemcke,  107  Ind.,  121 123 

Hutchinson  v.  State,  30  Tex.,  fm H7 

I. 

Indianapolis,  City  of,  v.  Scott,  72  Ind. ,  196  51 5 

Ingalls  V.  State,  48  Wis.,  047 38,  830 

Insurance  Co.  v.  Chewer,  36  Oliio  St.,  201  141 


J. 

VAOB. 

Jackson  v.  State,  76  Ala. ,  20 4.50 

Jackson  v.  State,  55  Wis.,  589 112 

Jack.son,  Com.  t.,  132  Mass.,  10,  18 195 

.Jackson,  U.  S.  v.,  29  Fed.  Rep.,  .503 4f.7 

•lacob-s  Case,  98  N.  Y.,  98 38,  89,  .56 

Jaehne,  People  v.,  103  N.  Y.,  182 81 

Jamesv.  Dexter,  113  111., 654 .532 

.Jan»  V.  Com.,  8  Mete.  (Ky.),  18 459.  4liO 

Jane  V.  State,  3  Mo.,  61  455 

Jarrell  v.  State,  .58  Ind.,  293 302 

•Tarrett,  In  re  Estate,  48  Ohio  St.,  19-1. . .  16 

Jefcoat,  State  v.,  20  S.  C,  383 511 

.Jcffersonville,  etc.,  E.  R.  Co.  v.  Bowen, 

40  Ind.,  .515 514 

Jenkins,  State  v.,  86  Mo.,  873 838 

.Jenkins,  State  v.,  20  S.  C,  121 498 

John,  State  v.,  2  Ala.,  890 511 

Johns  V.  State,  IW  Ind.,  557 582 

Johnson,  State  v.,  91  Mo.,  439 B83 

Johnson,  Regina  v.,  10  Cox,  C.  C,  114. . .  589 

Johnson,  State  v.,  100  N.  C,  494 590 

Johnson  v.  State,  22  Tex.  App.,  206 466 

Johnson  v.  Barclay,  16  N.  J.  Law,  1 491 

Johnson,  U.  S.  v.,  26  Fed.  Rep.,  028 438 

.Johnson,  State  v.,  30  La.,  921 04 

Johnson  V.  State,  46  Ala.,  212 241 

Johnson,  State  v.,  40  Conn.,  136 283 

Johnson  v.  State,  47  Ala.,  02 881 

.Jn.iiison  V.  Miller,  09  la.,  .562 336 

Johnston  V.  Com.,  85  Pa.  St.,  ' ' Ill 

Johnston  v.  Com.,  115  Pa.  St.,  .369 178 

Johnston,  State  v.,  76  N.  C,  209 587 

Johnston,  State  v.,  5  Jones  (N.  C),  221 . .  218 

.Joiner  v.  State.  620a.,  ,500 580 

.Jones,  State  v.,  70  la.,  .505 5(i7 

Jones  V.  State,  11  Ind.,  .357 552 

.Jones,  U.  S.  v.,  31  Fed.  Rep.,  718 437 

Jones,  People  v.,  21  Mich..  215 a5.') 

Jones,  Ex  parte,  01  Ala.,  399 10 

Jones,  U.  S.  v.,  10  Fed.  Rep.,  469 170 

.Jones  V.  Roberts,  05  Me.,  270 108 

Jones,  Peopli,'  v.,  .54  Barb.,  311 220 

Jones  V.  State,  25  Tex.  App.,  021 2^1,5 

Jones,  State  v.,  01  Mo.,  .391 418 

Jones,  People  v.,  5:3  Cal.,  58 331 

Jones,  U.  S.  v.,  31  Fed.  Rep.,  718 8.36 

Jones,  The  King  v.,  1  Dong.,  800 192 

Jordan,  State  v.,  09  la.,  506 a30 

Jordan  v.  State,  81  Ala.,  20 467 

Juarez,  People  v.,  28  Cal. .  380 841 

Jung  Sung  Sing's  Case,  11  Pac.  R.,  755 . .  667 

K 

Kay  V.Bethel,  5  Mod.,  19 238 

Kane,  State  v.,  63  Wis.,  800 109,  111,863 

Kane  v.  People,  8  Wend.,  203 353 

Kannon  v.  State,  7  Boxt.,  10  I^a,  300 888 


mi 


TABLE  OF  CASES  CITED. 


XI 


PAuB. 

Kaunt  V.  Kessler,  114  Pa.  St.,  003 81 

KeeJy  v.  State,  14  Iml.,  30 a»l 

Keelantl,  State  v.,  3  S.  W.  R.,  442 331 

Kelley  v.  State.  01  Ala.,  19 018 

Kelley.  State  v.. !)«  N.  C.  404 5(i« 

Kt'lly  V.  State.  7  Daxl. ,  !K3 323 

Keiiney  v.  Pliillipy,  91  Ind..  .511 5153 

Kennedy  v.  Slate,  Ki  Ind..  .543 5,53 

Kenriek,  Qiieon  v.,  .5  Q.  B.,  49 1.51 

Kentv.  State  (Ohio).  OCrim.  Law  Mas;., 

530 401 

Kenyon  v.  People.  30  X.  Y.,  303 Oil 

Kierv.  Leeman.  9Q.  B.,3"l 71 

King,  Com.  v.,  H  Gray,  .501 B03 

Kinp  V.  State,  33  Tex.  App.,  C30 5H5 

Kinney,  State  v.,  44  Conn.,  153 591 

King  V.  Kingston,  8  East.  41 119 

Kingv.  Kline,  0  Pa.  St.,  .318 480 

Kirliy,  U.  S.  v.,7Wnll.,  183 414 

Kitchen  v.  State,  30  Tex.  App.,  103 499 

Knapp,  Com.  v.,  10  Pick..  477 503 

Kneeland,  Com.  v.,  20  Pick 390 

Knight  V.  State,  70  Ind.,  373 549 

Knight  V.  Tiu-qnand,  3  Mees.  &  W.,  100. .  20 

Kreamer  v.  State,  0  N.  E.  Uep.,  Ml 300 

Kring,  State  v.,  04  5Io. ,  ,595 140 

Kiiel  V.  Com.,  5  Ilush.  303 383 

Kunz,  People  v.,  73  Cel.,  313 31 

L. 

La))adie  v.  Dean,  47  Tex..  90 &10 

T^dd.  Com.  v..  15  Mns.s..  520 197 

Ladsingham.  Rex  v..  T.  R.iyni.,  193 81 

Lamh  V.  Peopli'.  9il  111.,  73 440,  447 

Lan<lon  v.  Roberts.  30  Vt.,  380  301 

Langley.  Coin,  v.,  14  firay.  21 319 

Lanier.  Stat<'  v.,  90  N.  C,  714 317 

Land,^'raf .  SlaK;  v .,  9.5  JIo..  97 37 1 

Lantz  V.  Miiffet,  102  Ind.,  23 517 

Ijiwlor,  State  v.,  38  Jliiin.,  210 :il 

Lawrence  v.  Stale,  50  Wis.,  .507 .51)3 

Lawrence,  Stale  v.,  57  >Ie..  .574 527 

Ijxwrence.  U.  S.  v.,  4  CraiU'h,  C.  C.  518. ,  380 

Lawrence,  State  v.,  17  X.  C.  492 *K» 

Liiwrence  v.  Com.,  .'iO  Orat.,  815 .5S7 

Laxton,  State  v.,  51  la.,  343 .599 

Lea  V.  State,  01  Miss.,  378 497,  498 

Leach  v.  Elwood,  3  Bradw.,  457 483.  480 

Leach,  Com.  v.,  1  Mass.,  ,59,   341 

Leahy,  State  v.,  1  Wis..  22.5 ,^50 

Learneil,  State  v..  47  Me..  120 -nn 

Leeper,  State  v.,  70  la.,  748 so 

Leslie  v.  State,  18  Ohio  St..  390 518 

Levigne's  Case,  17  Nev.,  445 'Mi 

Lewer  v.  Com.,  15  Serg.  &  R.,  93 380,  337 

Lewis  V.  Lee  Co.,  00  Ala.,  480 431 

Llohleter,  State  v. ,  95  Mo. ,  402 304 

Lindlejr,  State  v.,  61  la.,  ai8 699 


PAOE. 

Livingston's  Case,  14  Grat.  (Va.),  598. .  313, 

518 

Lockwood,  State  v..  58  Vt.,  378 253.  3.VI 

Long  V.  State,  50  Ind.,  183 11^,  121 

Long  V.  State,  27  Ala..  32 3-ia 

Loomis  V.  People,  07  X.  Y.,  .32".) .333 

Lopez,  State  v.,  19  Mo.,  8.5.5,  850 302 

Loughery,  U.  S.  v.,  13  Blatch..  207 31C 

Louisville,  etc.,  R.  W.  Co.  v.  Falvey,  104 

Ind.,  409 427 

Lowery  v.  Howard,  103  Ind.,  440 554 

Lowell  V.  Gathright,  97  Ind..  313 480 

Ludlow  V.  Johnson,  3  Ohio,  575 15, 10 

Luttrell  V.  State,  85  Tenn.,  833 198 

Lynde  v.  McGregor,  13  Allen,  172,  180. . .  193 

Lynch  v.  Com.,  88  Pa.  St.,  189 83 

Lyons.  People  v.,  51  Mich.,  215 612 

Lj-on  V.  Lyman,  9  Conn.,  55 109 

M. 

JIace,  State  v..  70  Me.,  64 201 

Mackins  Case,  03  Ind.,  341 890 

Mnclin  v.  State,  44  Ark.,  115 832 

Maher  v.  People,  10  Mich..  235 501 

Mahoney,  Com.  v.,  115  Mass.,  \;n ,543 

JIaines  v.  State,  20  Tex.  App..  14 499 

:Makely,  Com.  v.,  131  Mass..  431 77 

Malono  v.  ,Stat'  14  Ind.,  319 117,  503 

Maloncy,  State  v.,  13  R.  I.,  251 823 

Mancy,  State  v.,  7  Am.  Cr.  R..  25 34, 31 

5Ianley,  State  v.,  74  la..  .501 a37 

Manufacturing  Co.  v.  Canney,  54  N.  H.. 

395 310 

Marble  v.  State,  13  Ind..  302 117 

Marchant.  U.  S.  v.,  12  Wheat..  480 ,305 

Miirliiiin  V.  State,  25  Ga..  .52 112 

Marion  v.  .-;tate,  20  N.  W.  R.  (Neb.).  39-1  .303 

Marlvham.  Com.  v.,  7  Bush.  4H0 486 

Marks.  People  v..  13  Pac.  Rep..  149 138 

:«arkwaril  v.  IJoiiat,  31  Ohio  St.,  0:17 17 

Marroii.  In  re.  00  Vt.,  199 ROO 

Marshall  v.  Blnckshire.  44  la..  475 480 

Martin,  State  v..  3  Ired.,  im 510 

Martin,  State  v..  74  Mo.,  .547 413 

Martin  v.  Blattiier,  0  Am.  Cr.  R.,  148. . . .  58 

Martin  v.  State,  39  Ala.,  .30 70 

Martin,  Rexv.,  0C.&  P., .502 99 

Marx,  Peoplev..  lEast  Rep.,  190 40.50 

Mascowitz  v.  State.  49  Ark..  170 300 

'lasterson  v.  Matthews,  00  Ala.,  300 .5,53 

Mason,  Com.  v.,  105  Mass.,  100 341 

Jluurer  v.  People,  43  N.  Y.,  1 500 

Mawbey,  Rex  v..OTerm  R.,  CI9 151 

Maxwell,  Com.  v.,  12  Pick.,  139 201 

Maxwell,  Com.  v.,  3  Casey,  450 8S 

Mayo  V.  State,  .30  Ala.,  38 853 

Mayo  V.  Stoneum,  2  Ala.,  390. . .  .'. .  653 

May,  State  v.,  4  Dev.,  838 ....  00 


-M, 


Xll 


AMERICAN  CRIMINAL  REPORTS. 


PAGE. 


Mayor  of  Washington  v.  Meigs,  1  Mac- 
Aitlmr  (D.  C.) 

Mivynard  V.  State,  14  Ind..4SK' 

Mayera,  Refrina  .  ,  12  Cox,  C.  C,  811 . . .  • 

Mayes,  People  v.,  (ifi  Cal.,  59" 

Meaker,  State  v.,.'>»Vt.,  113 

Means  V.  State,  10  Tex.  App.,  10 

Mehan,  Com.  v.,  1 1  Oray,  :«1 

Meister  v.  People,  31  Micli.,  i» 

Mereeinv.  People,  SjWend.,  f>4 888 

....    33(1 

10 

....  883 
.  354,  a50 
449 


486 
119 
584 
691 
4.30 
177 
244 
502 


Merrick,  State  v.,  19  Me.,  398  . . . 
Metcalf  V.  Mctealf,  19  Ala.,  319.. 
Mewherter,  State  v.,  4«  la.,  88. .. 
Millard,  People  v.,  5:1  .Mich.,  07. . . 

Miller  v.  Stale,  2.->  AVis.,  381 

Miller,  State  v.,  97  N.C.,  484 

Miller,  People  v.,  00  Cal.,  408 

Miller,  State  v..  00  Vt.,  90 

Miller,  State  v.,  3  N.  W.  R.,  31 . . . . 
Miller,  State  v.,  5  Blackf.,  502. .. . 
Miller  v.  State,  15  Tex.  App.,  123 

MiUingtoii,  In  re,  24  Kan.,  814 548 

Mills  V.  State,  52  Ind.,  187 118 

Jlitchell,  People  v.,  02  Cal.,  411 141 

Mitchell  V.  State,  58  Ala.,  417 381 

Mitchell  V.  Smith,  21  Ind.,  2.')2 5.")2 

Miteliell  v.  Williams,  2~  Ind.,  02 480 

Mogul  S.  S.  Co.  V.  McGregor,  15  Q.  B.  Div., 

470 151 

Montgomery,  State  v.,  8  Kan..  331 6.50 

Montgomeiy,  SIftte  v..  22 N.  W.  R.,  039  . .  512 

Jloody  V.  Rowell,  17  Pick.,  490 109 

.Moore,  Com.  v..  4  Am.  Cr.U.,  250 183 

Moore,  U.  S.  v.,  91  U.  S.,  273 109 

Moore  v.  Trimble,  94  Ind.,  133 5.')2 

Moore  v.  Stati',  17  Ohio  St.,  522 589 

Morey  v.  Brown,  42  N.  H.,  379 480 

Morm,  Rex  v.,  Russ.  &  R.,  292.     aW,  341 

Morrel,  Com.  v..  Oil  Mass.,  512 189 

Morris  v.  State,  1  Blackf..  37 213,  518 

Morris  Coal  Co.  v.  Barclay  Coal  Co.,  08 

Pa.  St.,  173 1!51 

Morrison  v.  Porter,  35  Minn.,  423 170 

Morrison  v.  State,  70  Ind.,  !135 520,  .521 

Morrison  v.  State,  84  Ala.,  485 442 

Morse,  State  v.,  00  Mo.,  91 497 

Morton's  Case .323 

Morton  V.  People,  47  111..  408 180 

Mott,  Com.  v.,  21  Pick.,  492 839 

Mott  V.  State,  s9  Ark.,  148 450 

Mount  V.  Com..  2  Duv.  OCy.),  93 839 

Mowery  v.  Salisbury,  82  N.  C,  175 480 

Mugler,  State  v.,  29  Kan.,  252 43 

Murdock,  State  ex  rel.  v.,  80  Ind,,  184  .. .  552 

Murdoek,  State  v.,  9  Mo.,  739 455 

Murphy,  State  v.,  21  Ind.,  441 200 

Murphy  v.  State,  7  Col.,  516 209 

Murphy  v.  People,  4  Am.  Cr.  R.,  388  ... .  353 

Murphy  v.  People,  2  Cowen,  815 490 


PAGE. 

MunAy  V.  state,  97  Ind.,  570 618 

Myers  v.  State,  101  Ind.,  379 117 

M.vers,  City  of  Topeka  v..  35  Kan.,  654. . .  528 

Myersv.  State,  92  Ind.,  390 558 

Mc. 

McAllister  v.  State,  17  Ala. ,  4M 270 

MeAlpin,  State  v.,  4  Ired.  (Law),  140. ...  10 

McBeth  V.  State,  50  Mis,s.,  81 375,  370 

McBeyer,  State  v.,  2 S.  E.  R.,  755  (N.  C.) .  300 

McCall,  State  v.,  4  Ala.,  043 Ill 

MeCord,  State  v.,  8  Kan.,  2:« 518 

McCorkle  v.  State,  14  Ind.,  39 618 

MoCook  V.  State.  7  Ind..  ICT 548 

MeCory,  State  v.,  2  Blackf.,  5 491 

MeCutclii'on  v.  Homer,  43  Mich.,  483  ... .  680 

McDanids  v.  RoUiiison.  02  Am.  Dec.,  586  220 

MeDermott  v.  State.  89  Ind..  187 555 

McDonald,  People  v..  9  Mich.,  150 587 

JIcDonnId  v.  State,  a3  Ala.,  40 198 

McDonald.  State  v.,  100  Ind.,  'Mi 117 

McDonel  v.  Slate,  90  Ind.,  :32i) 427 

McDowell,  People  v.,  (i3  Jlich.,  229  .. .  349,  .361 

McEvoy,  State  v.,  9  S.  C,  212 300 

Mel'adilen  v.  Coi;;  ,  23  Pa.  St.,  12 201 

McOairiM,  State  v .,  30  Kan.,  315 300 

McOehan,  Ex  parte,  22  Ohio  St.,  442.   .. .  286 

Mctiear  v.  WoodrulT,  33  N.  J.  Law,  213. .  4!W 

McCiiiwan,  People  v.,  17  Wend.,  .380 .3:31 

McOregg  v.  State,  4  Blackf.,  101 119.  120 

Mcdregor  v.  State,  10  Ind.,  9 119 

McKinney  v.  IVople,  2  Oilman,  552 25t) 

McKiniiey,  People  v.,  10  Mich.,  94,  95.  .351,3,52 

JIcKiiin.'y,  IVople  v.,  10  Mich.,  54 144, 145 

McMahan  v.  tJreen,  :34  Vt.,  09 06 

McMahon,  State  v.,  53  Conn.,  407 3ttO 

McMeen  v.  Com.,  114  Pa.  St.,  301 4;« 

McMillan  v.  Stale.  13  Mo.,  30 411 

McMillan,  People  v.,  .52  .Mich.,  027,  ;390. . .  35:1 
McXaghlcn's  Case. .  .271,  2^4,  270,  282,  284.  285 

McNeal  v.  Woods,  31  Blackf.,  185 78 

McQuJiid  V.  People,  3  fiihn.  (111.),  78 202 

McQuirk  v.  State,  81  Ala.,  l:i5 .592 

McRoberts,  People  v.,  02  III.,  38 414 

N. 

Nance,  State  v.,  25  S.  C,  168 808 

Nelson,  Stale  v.,  11  Nov.,  311 343 

Nelson,  Stato  v.,  8  N.  11.,  ll« a53 

NeviiiB,  People  v.,  1  Hill,  154 233 

Neverson,  U.  S.  v.,  1  Mackey  (D.  C), 

1.52 208 

Newer,  State  v.,  7  Blackf.,  .327 288 

Newcomb  v.  State,  37  Miss.,  383 464 

Nicholls  V.  State,  08  Wis.,  420 268 

Niehol,  People  v.,  31  Cal.,  815  440 

Nichols  V.  Com.,  114  Mass.,  286 629 


TABLE  OF  CASES  CITED. 


XIII 


FAOE. 

Nichols  V.Cornelius,  rind.,  611 S15 

Noland,  State  v..  «!)  Iiid.,  ai2 SC5 

Norris  V.  State,  85  Ohio  St.,  817 304 

Norton  v.  State.  IW  Ind.,  347 437 

Northwestern  Mut.  Life  Ins.  Co.  v.  Ileiii- 

mann,  03  Ind.,  84  533 

Noyes,  Stale  v.,  85  Vt.,  415 151 

Nunes  v.  Perry,  113  Mass.,  270 107, 108 

.     o. 

O'Bryan  v.  State,  48  Arlf.,  42 800 

OI>er,  Statev.,53N.  II.,459  53« 

Ochs  V.  People,  181  III.,  .WJ 14« 

O'Connor  v.  IlulUnan,  103  Mass.,  540. .. .  lOil 

O'Connel  v.  ReK'"a,  II  Clark  &  F.,  155. . .  824 

Ogle,  People  v.,  104  N.  V.,  5;>1 81, 31 

O'Leary,  Com.  v.,  143  Mass.,  05 300 

Oleson  V.  State,  1 1  Neb.  ,370 501 

Olivev.  State,  11  Neb.,  1 31 

Olivera,  People  v.,  7  Cal.,  403 4.17 

Oliver  V.  State,  4  Am.  Cr.  R.,  .5:i2 5!tl 

Olnistead,  Pi-ople  v.,  30  Mieh.,  431 350 

O'Meara  v.  State,  17  Ohio  St.,  r>15 .58H 

O'Niel,  People  v.,  07  Cal.,  378 58« 

OpiM-'iiheini  V.  Pittsburgh,  etc.,  R.  It.  Co., 

85Ind.,471 552 

Orehanl,  Retina  v.,  8  Car.  &  P.,  ."jOS . .     . .  601 

Orinsby,  People  v.,  104  N.  Y..  481 ,58,5 

0"SuUivan,  People  v.,  104  N.  Y.,  481 585 

P. 

Page  r.  Homans,  14  Me.,  481 107 

Painter,  State  v.,  07  Mo.,  85 331 

Palmer,  Com.  v.,  131  Maxs..  537 480 

Palairefs  Ai)ix'al,  17  P.  F.  S.,  183 30 

Parker,  State  v.,  10  Nov..  79 112 

Parker,  People  v.,  01  Jlleli.,  1 LW,  170 

Parker  v.  State,  07  Ind .,  32!) 601 

Prtttison,  Ex  parte,  ,50  SIlss.,  101 220 

Patterson  v.  Kentueky,  07  U.  S.,  ,501 43 

Payne  v.  State,  4  Am.  Cr.  R.,  155 21,  .308 

Peden  v.  State,  01  Miss.,  2IW 4-18 

PeifTer  V.  Com.,  15  Pa.  St.,  40S 801 

Pennynian,  State  v.,  08  la.,  210 380 

Pennsylvania  R.  R.  Co.  v.  Riblet,  00  Pa. 

St.,  IM 86,38 

Perkins,  People  v.,  1  Wend.,  01 500 

Perkins  V.  State,  05  Ind.,  317 8.38 

Perkins,  Com.  v..  1  Piek.,  388 244 

Perez,  U.  S.  v.,  9  Wheat.,  579 618 

Perry,  People  v.,  8  Abb.  Pr.  (N.  S.),  27. .  820 

Perry  v.  People,  14  III..  4!)0 442 

Ferteet  v.  People,  70  III. ,  171 630 

Peteiwn,  State  v.,  25  N.  W.  R.,  780 519 

Peterson,  State  v.,  07  la.,  BtM 880 

Pflster  V.  State,  84  Ala.,  4:12 345 

Phelps,  Stole  v.,  01  Mo.,  478 .380 


PAOE. 

Phillips  V.  Com.,  8  Mete.,  588 230 

Pierson  V.  State,  .39  Ark.,  210 588 

Pierce,  State  v.,  05  la.,  85 438 

Pike,  State  v.,  49  N.  H.,  399 274,  282, 310 

Pinkerton,  People  v.,  77  N.  Y.,  345 313 

Piper,  Com.  v.,  120  Mass.,  185 310 

Pirtle  V.  State,  9  Humph.,  OOi) 440 

Planters',  etc..  Bank  v.  Andrews,  8  Port. 

CAla.),  404 180 

Plath,  People  v.,  6  Am.  Cr.  R.,  1 7 

Plath,  People  v. ,  100  N.  Y. ,  503 24 

Pleasant  v.  State,  13  Ark.,  300 587 

Pleasant  v.  State,  15  Ark.,  024 502 

Plumbly  V.  Com.,  2  Jletc,  413 239 

Polk  V.  State,  40  Ark.,  402 Oil 

Polk  V.  State,  45  Ark.,  105 382 

Porter  v.  State,  2  Ind.,  435 551 

Potts,  State  v.,  100  N.  C,  4.')7 442 

Potter  V.  State,  85  Tenn.,  88 178 

Poulson  V.  Union  Nat.  B'k.  40  N.  J.  (Law)  318 

Pratt,  Com.  v.,  1.38  Mass.,  240 508 

Prescott  V.  Stote,  10  Ohio  St.,  184 491 

Presser  v.  State,  77  Ind.,  374 555 

Price,  Com.  v.,  10  Cray,  472,  470 195 

Priest  V.  State,  10  Neb.,  8iW 223 

Prine  v.  Com.,  18  Pa.  St.,  103 600 

Proctor  V.  De  Camp,  a3  Ind..  .V)9 520 

Providence  Voters,  In  re,  13  R.  I.,  737 822 

Pui-sell  V.  Porter,  20  La.  Ann.,  325 400 

Q. 

Quarl  V.  Abbett,  102  Ind.,  233 547 

Quick,  State  v.,  15  Rich.,  349 800 

R. 

Raborp,Statev.,2South..6l5 882 

Racco  V.  State,  37  Miss.,  m:  2(>2 

Railing  v.  Com.,  0  Am.  Cr.  R.,  7 21, 308 

Railway  Co.  v.  Richardson.  00  Ind.,  43....  018 

Rainey  v,  State,  20  Tex.  App.,  455 405 

Rand  v.  Com.,  9  Grat.,  743 839 

Randolph  v.  Yellowston  Kit,  83  Ala.,  471 . .  213 

Randolph  v.  McCain,  34  Ark.,  000 388 

Roschke,  People  v.,  73  Cal.,  378 834 

Rawson  v.  Rawson,  58  111.,  08 601 

Ray,  Com.  v.,  3  Gray,  441 192 

Redus  V.  State,  83  AUi..  58 137 

Reed  v.  Rice,  2  J.  J.  Marsh..  44 CO 

Reed,  State  v.,  47  N.  II.,  400 305 

Reeder,  Statev.,90Mo.,  54 467 

Reggel,  Ex  parte, 6  Am.  Cr.  R.,  218 217 

Remsen  v.  People,  43  N.  Y.,  0 809 

Reynolds  v.  State,  4  Am.  Cr.  R..  153 21, 863 

Reynolds,  Com.  v.,  122  Mass..  4IM 109 

Rhea  v.  State,  10  Yerg.  (Tenn.),  2,")8 93 

Rhines  v.  Clark,  51  Pa.  St.,  00 401 

Richardson  v.  Newconib,  81  Pick.,  315 100 


XiV 


AMERICAN  CRIMINAL  REPORTS. 


PAGE. 

Rlchart,  State  v.,  67  la.,  846 336 

Rifklesv.  State,  68  Ala.,  S38 «« 

Rigffsv.  State,  104  Iiid.,  201 2(i0 

Ritchey  v.  State,  7  Blackf.,  108 78 

Rivers,  State  v.,  08  la..  Oil 134 

Roberts,  State  v.,  15  Mo.  89 413,  413 

Roberts  v.  State,  3  Ga.,  310 887 

Roberts,StutfV.,SUev.&B.,540. 847 

Roberts,  State  v.,  15  Oreg.,  J87 31 

Robiusou  V.  .State,  10  Lea  (Tenn.),  140 84 

Robinson  v.  State,  -Ji  Tex.  App.,  090 830 

Robinson  v.  Flanders,  S9  Inil.,  10 215 

Robinson  v.  Slate,  84  Ala. ,  494 253 

Robiusou,  State  v.,  49  Me.,  885 893 

Robson  V.  Keuip,  5  Esp.,  .'>8 81 

Rodgers  v.  Kline,  50  Miss.,  818 395 

Rogers,  People  v.,  71  Cal.,  565 469 

Rogers  V.  People,  9  Col.,  450 493 

Rogers  v.  Beauchamp,  108 Ind.,  33 55'J 

Rogers,  Com.  v.,  7  Mete.,  500 2<«,  287 

Rolfe  V.  Inhabitants  of  Rumford,  CO  Me., 

504 141 

Rolland  v.  Com.,  82  Pa.  St.,  385 108 

Rolls  V.  Stat«,  .58  Miss.  ,391 500 

Roosuell.  Com.  v.,  143  Mass.,  38 590 

Rosboroiigh  v.  State,  8  Tex.  App.,  672. . .    404 

Rose  V.  Allison,  41  Ind.,  276 5.58 

Rose  V.  Bank,  91  Mo.,  399 170 

Rossan.  Ex  parte,  81  Tex.  App 828 

Ross,  State  v.,  85  Mo.,  426  185 

Ross,  U.  S.  v.,  1  Gall.,  084 573 

Ross"  Case,  2  Pick.,  105 2IJ9 

RothobiUl  V.  State,  7  Tex.  App.,  519 511 

Rounds  V.  Stale,  57  Wis.,  45 503 

Rowlands,  Keglna   v.,  17   Adol.  &   E. 

(N.  S.),  071 151 

Rowell  V.  Fuller's  Estate,  59  Vt.,  088. .  105,  107 
Rowton,  Regina  v.,  L.  &  Crown  Cases, 

1861-0.5,520 013 

Rugg  V.  Parker,  7  Gray,  178 10 

Rule.  City  of  Philadelphia  v.,  18Morris,  15     39 

Ruloff  V.  People,  45  N.  Y.,  813 440 

Ruloff  V.  People,  18  N.  Y.,  179 m 

Ruseoe,  Queen  v.,  8  Adol.  &  E.,  380 113 

Rust,  State  v.,  31  Kan.,  509 208 

Ryan,  .State  v.,  12  Nev.,  403 3;}9 

Ryan,  State  v.,  15  Ore.,  578 VU 

Rj'ders,  People  v.,  18  Wend.,  423 353 

S. 

Salem,  People  v.,  20  Mich.,  452 39 

Sammons,  State  v..  95  Ind.,  82 201,  805 

Sampson  v.  State,  54  Ala.,  841 ]30 

Sanders  v.  State,  85  Ind.,  318 I'.M) 

Saunders,  State  v.,  08  la.,  370 ms 

Scarlett,  State  v.,  4  Am.  Cr.  R.,  878 SOI 

3chumin  V.  State,  80  Ohio  St.,  833  3io 

Bchultz  V.  State,  83  Tex.  App.,  10 ?M 


FAGB. 

Schultz  V.  State,  38  Ohio  St.,  280 10 

Schwartz  v.  State,  85  Tex.,  704 244 

Scott,  Com.  v.,  183  Mass.,  841 628 

Scripps,  Reilly  v.,  35  Mich.,  371 626 

Searcey,  U.  S.  v.,  86  Fed.  Rep.,  485 488 

Seely  v.  City  of  Pittsburg,  1  Morris,  860.  89 

Selsby,  Regina  v.,  5  Cox,  0.  C,  495 151 

Sessions,  People  v.,  58Mich.,  594. . .  819, 350, 851 

Shaferv.Mumma,  16  Md.,8.31 490 

Shaffer,  State  v.,  4  Am.  Cr.  R.,  83 184 

Sharp,  People  v.,  107  N.  Y.,  427 124 

Sharp  V.  State,  0  Tex.  App.,  050 08 

Sharp  V.  State,  15  Tex.  App.  ,171 687 

Sharpless  v.  The  Mayor,  »  H.,  147  ..  .34,  85,  89 

Shattuck  V.  State,  11  Ind.,  473 552 

Shearman,  Com.  v.,  11  Cush.,  540 844 

Sheehan's  Case,  128  Mtt.s8.,  445 553 

Shelledy,  Slate  v.,  8  Clark  (Iowa),  478  447,449 

Shelton  v.  State,  11  Tex.  App.,  80 177 

Sherburne,  State  v.,  59  N.  H.,  99 192 

Shim  V.  Slate,  08  Ind.,  483 800,  508 

Shircliff  v.  State,  90  Ind.,  309 117,  558 

Shirts  V.  Irons,  38  Iiul.,  458  651 

Shoffner  v.  State,  93  Ind.,  519 190 

Short  V.  State,  0:1  Ind.,  370 181 

.Shular  v.  State,  105  Iiid.,  389 480 

Siebert  v.  State,  95  Iiul.,  471 611 

Siebold  v.  People,  80  111.,  :« 493 

Sill  V.  Corning,  15  N.  Y.,  297  491 

Simmons,  U.  S.  v.,  90  U.  S.,  .300,  303 800 

Slaughter-IIouse  Cases,  10  Wall.,  36 43 

Slymer  v.  State,  03  Md.,  238 895,  896 

Smith,  People  v.,  85  Mich.,  497 673 

Smith  V.  Com.,  104  Pa.  St.,  339 803 

Smith's  Case,  3  McLean,  181 215 

Smith  V.  State,  1  Tex.  App.,  408 16 

Smith  V.  Schultz,  1  Scaui.,  490 343 

Smith,  State  v.,  4  Blackf.,  101,  103 aKi 

Smith  V.  People,  5  Am.  Cr.  R.,  015 520 

Smith,  People  v.,  5  Cow.,  858 » 11 

Smith,  Stale  v.,  73  la.,  33 J70 

Smith  V.  Clayton,  6  Dutcher,  353 810 

Smith  V.  Com.,  1  Diiv.,  8-34 283 

Smith  V.  People,  85  111.,  17 151 

Smith,  State  v.,  75  N.  C,  307 140 

Smith  V.  People,  115111.,  17 134 

Smith  V.  State,  9  Ala.,  WO  98 

Smith  V.  State,  8;^  Ala.,  86 88 

Sneed  v.  People,  38  Mich.,  248 502 

Sneed  v.  State,  47  Ark.,  180 407 

Sneff,  State  v.,  28  Neb.,  481 134 

Snell,  lure,  31  Minn.,  110 827 

Snell,  State  v.,  40  Wis.,  534 830 

Snelson  v.  State  ex  rel.,  10  Ind.,  29 547 

Snyder  v.  People,  20  Mich.,  106 78 

Snyder  v.  State,  59  Ind.,  105 181 

Soon  Iling  v.  Crowley,  1 13  U.  8.,  703 43 

So<|uet  V.  State,  72  Wis.,  659 306 

Soto,  People  v.,  69  Cal.,  307 162 


TABLE  OF  CASES  CITED. 


XV 


PAGE. 

South,StateT.,28IT.  J.  (Law),S8    840 

Spalding,  State  v.,  eOVt,,  888 800 

Spalding's  Case,  1  Leach,  268 76 

Speer  v.  Coate,  8  McCord  (8.  C).  232. . . .      05 

Spies  V.  People,  0  Am.  Cr.  U.,  570 452 

Spicerv.  State,  68  Ala.,  159 136,842 

Spieies  V.Parker,!  Term  R.,  141 201 

Splttrofl  V.  State,  108  Ind. ,  171 259 

Sprague,  People  v.,  53  Cal.,  401 .  180, 102 

Springhead  Co.  v.  Riley,  L.  R.,  6  Eq.,  551    151 

Stuff,  In  re,  6 Cr.  Law  Mag.,  828   518,554 

Stanley,  People  v.,  47  Cal.,  113 239 

Steams,  Com.  v.,  10  Met.,  236 104 

Sleenv.  State,  20  Ohio  St.,  338 19 

SteubenvoU,  People  v.,  88  N.  W.  R.,  881 . .  437 
Stephens  v.  Oppenheiuier,  45  Ark.,  492. . .    333 

Stevens,  People  v.,  08  Cal.,  113 132 

Stevens,  State  v.,  23  N.  W.  R.,  777 649 

Stewart,  State  v.,  59  Vt.,  873 150 

Stewart  v.  State,  22  Ohio  St.,  477 599 

Stoats,  State  v.,  8  How.,  44,  45 457 

Stone  V.  State,  2  8.  W.  R.,  585 31 

Stone  V.  Sogur,  11  Allen,  508 305 

Stone  V.  Mississippi,  101  U.  S.,  814 43 

St.  Louis  &  8.  F.  R'y  Co.  v.  Evans,  85 

Mo.,329 414 

Storlty,  State  v.,  63  N.  C.,7 590 

Story  V.  State,  99  Ind.,  413 420,  555 

Strahan  Case,  7  Cox,  Cr.  C,  85 543 

Stroulger,  Queen  v.,  L.  R.,  17  Q.  B.  Div., 

327 112 

Stuart  V.  People,  48  Mich.,  235 134 

Sturtivant,  Com.  v.,  117  Mass.,  137 168 

Sullivan,  Com.  v.,  104  Mass.,  558 353 

Sullivan  v.  State,  5  Stew.  &  P.,  175 76 

Summers,  State  v.,  98  N.  C,  702 591 

Sutton,  People  v.,  73  Cul. ,  243 363 

Sutton,  State  v.,  10  R.  I.,  159 303 

Swails  v.  Coverdill,  21  Ind.,  271 540 

Sweeney,  People  v.,  55  Mich.,  580.  .819, 351, 441 
Sylvester  v.  State,  71  Ala.,  17 242 


T. 


Taber,  Com.  v.,  123  Mass.,  233 553 

Talbot,  Com.  v.,  2  Allen,  161 197 

Tatlow,  State  v.,  84  Kan.,  80 899 

Taylor  v.  State,  .35  Tex.,  97 404 

Taylor  v.  State,  111  Ind.,  279 584 

Taylor  v.  Skrine.  2  Ti-ead.  (S.  C),  090. . .  558 

Taylor,  Peoi)le  v.,  3  Denio,  91 839 

Teiuler,  People  v. ,  19  Cttl. ,  539 220 

Tenny  v.  Lenz,  10  Wis.,  589  486 

Terrell,  State  v.,  12  Rich.,  381 '  306 

TImmas  v.  State,  103  Ind.,  419 ...  588 

Thompson,  People  v.,  97  N.  Y.,  313 103 

Thompson  v.  State,  30  Ala.,  28  573 

Thompson  v.  Lacy,  3  Parn.  &  Aid.,  883 .. .  230 

Thompson,  Com.  v.,  4  Leigh,  007 284 


PAGE. 

Thompson  v.  State,  87  Ala.,  151 242 

Thompson  v.  State,  25  Ala.,  41 446 

Thorpe  v.  Railroad  Co.,  27  Vt.,  149 49 

Thornton,  Ex  parte,  9  Tex,,  635 215 

Tbuisthi,  State  v.,35Me.,aOO 406 

Thurston  v.  State,  8  McMul.,  382 328 

Tiedke  v.  City  of  Saginaw,  43  Mich.,  64. . .  852 

Tiffany  V.  Com.,  121  Pa.  St.,  165 409 

Tihnao,  State  v.,  30  La.  Ann.,  1240  687, 588, 680 

Tilton,  Statov.,  63Ia.,  117 184,  886 

Timsv.  State,  36  Ala.,  165 491 

TlndaUv.8tate,71Ind.,814 190 

Tinkler's  Case 17» 

Titus,  Com.  v.,  110  Mass.,  42 441 

Tomlin,  State  v.,  5  Dutch.  (N.  J.),  15. . . .  188 

Townley  v.  Cady,  10  Neb.,  388 209 

Treadwell,  People  v.,  09  Cal.,  238 180 

Trigally  v.  Memphis,  6  Coldw.,  382 490 

Troutman  v.  State,  49  N.  J.  Law 494 

Trueman,  Reg.  v.,  Car.  &  P.,  727 853 

Tucker,  Rex  v.,  1  Moody,  184  108 

Tuckerv.Hennicker,41  N.H.,817 526 

Tullv.Stateexrel.,99Ind.,838 512 

TuUossv.  City  of  Sedan,  81  Kan.,  103 486 

Tully  v.  Com.,  13  Bush,  142 808 

Tully  v.People, 67  N.  Y.,  15 871 

u. 

Uhrig,  Com.  v.,  140  Mass.,  132   298 

Union  M.  L.  Ins.  Co.  v.  Buchanan,  100 
Ind.,  63 427 

V. 

Vandermark  v.  People,  47  111.,  122 442 

Van  Horn  v.  People,  40  Mich.,  183 486 

Vaughan  v.  State,  21  Tex.  App.,  573 336 

Vason  v.  City  of  Augusta,  88  Ga.,  542. .. .    491 

Veach  v.  State,  00  Ind.,  891 213,  518 

Venable  v.  White,  2  Head,  682 550 

Vincent,  Ex  parte,  26  Ala.,  145 Ill,  863 

W. 

Wadlington  v.  State,  19  Tex.  App.,  200  . .  466 

Wagner  v.  State,  107  Ind.,  71 330 

Wagner,  State  v.,  78  Mo.,  644 617 

Waite,  Com.  v.,  11  Allen,  864 44 

Waite,  Com.  v.,  93  Mass.,  864 ...  49 

Wakefield,  State  v.,  00  Vt.,  018 207 

Walker  v.  State,  0  Tex.  App.,  576 90 

Walker  v.  State,  8  Ind.,  290 442 

Walden,  Com.  v.,  3  Cush.,  558 290 

Wallbridge  v.  State,  13  Nob.,  236 864,  4.S8 

Walls  V.  State  M  Ind,,  561 502 

WnlliK  V.  White.  58  Wis.,  27 612 

Walsby  v,  Aniey ,  3  El,  &  El.,  616 151 

Walton  V,  State,  62  Ma.,  197 298 


xvi 


AMERICAN  CRIMINAL  REPORTS. 


Wamlre,  State  v.,  10  Ind.,  857 518 

Ward,  State  v. ,  01  Me. ,  545.  2*1 

Ward  V.  State,  48  Ind.,  389 2SM 

Ware  V.  Ware,  8  Me.,  42 810 

Ward,  c;tate  v.,  39  Vt.,  S30 810 

Ward,  State  v.,  19  Nev.,  297    W5 

Warden  v.  State,  00  Miss.,  040 810 

Washington  v.  State,  82  Ala.,  31 77 

Washington  v.  State,  82  Tex.  App.,  29  . . .    497 

Waters  v.  State,  4  Am.  Cr.  R.,  33 (M 

Watl<in.s,  U.  S.  v.,  3  Cranch,  C.  C,  443. . .    314 

Watts  V.  State,  aS  Ind.,  237 552 

Watson's  Case,  9  Adol.  &  E.,  731 232,  2;« 

Waybriglit  v.  State,  50  Ind.,  122. 555 

Weaver  v.  State,  83  Ind.,  289 IflO 

Weaver  v.  Coolidgo,  15  la.,  &14 549 

Webster,  Cora,  v.,  5  Cush.,  290 304.  599 

Webster,  Com.  v.,  5  Cnsh.,  295 872,  401 

Wells,  State  v.,  112  Ind.,  237 103 

Wenierv.Com.,80Ky.,387 400 

Weston  v.  Com.,  0  Am.  Cr.  R.,  140 22 

West  V.  State,  70  Ala,  98 92 

West,  Regina  v.,  8  Cox,  C.  C,  12 183 

West,  People  v.,  100  N.  J.,  293 2.'>9 

Wetherford,  State  v.,  25  Mo.,  439 511 

Wheeler,  Com.  v.,  2  Mass.,  172 203 

Wheeler,  Snow  v.,  113  Mass.,  180 151 

Wheeler,  State  v.,  3  Vt.,;i« 341 

White,  Stale  v.,C4N.  H.,48 494 

White,  State  v..  08  N.  C,  158 90 

White  V.  Wager,  32  Barb.  ,250 405 

Whiting  V.  State,  14  Conn.,  487 219 

Wickwiie  V.  State,  19  Conn.,  478 543 

Wilkes,  Reg.  v.,  7  Car.  &  P.,  272 420 

Wilcox  Case,  0  Lea,  571 822 

Willard  v.  Reinhardt,  2  E.  D.  Smith,  148. .    220 

Williams  v.  State,  01  Wis.,  281 517 

Williams,  Com.  v.,  2  Cush.,  582 502 

Williams  v.  State,  5  Am.  Cr.  &.,  012 584 

Williams  v.  State,  52  Ala.,  413 84i 

Williams'  Case,  10  Humph.,  101 323 

Williams,  State  v.,  00  la.,  578 441 

WilliamB,  State  v,,  30  Mo,,  304 450 


FADE. 

Williams  V.  Augusta,  4  Ga.,  800 480 

Williams,  State  v.,  80  N.  J.  (Law),  100. . .    495 

Williams  V.  State,  01  Wis.,  290 113 

Williams  v.  McLanalian,  07  Wis.,  500. .. .    187 

Williams,  U.  8.  v.,  1  Dill.,  485 223 

Williams  v.  People,  101  III.,  888 253 

Williams  v.  State,  4  Am.  Cr.  R.,  202 200 

Williams,  State  v.,  7  Jones  (N.  C),  440. . .    404 

Will  V.  State,  52  Ala.,  10 »13 

Wills  V.  State,  73  Ala.,  802 617 

Wilson  V.  People,  39  N.  Y.,  450 »12 

Wilson  V.  State,  45  Tex.,  70 82:1 

Wilson,  State  v.,  1  N.  J.  (Law),  439 Ill 

Wilson,  People  v. ,  3  Park.  Cr.  R.,  199 403 

Wilson,  State  v.,  21  Kan.,  189 BOS 

Wilson  V.  State,  50  Ind.,  487  50 

Winsor,  State  v.,  5  Har.  (Del.),  512 287 

Winton,  Com.  v.,  108  Mass.,  485 543 

AVinterrowd  v.  Messick,  87  Ind.,  122 552 

Withers  v.  Mechanics'  Bank,  0  Wheat., 

107 648 

Withee  v.  Brooks,  05  Me.,  14    109 

Wolcott,  Plate  v.,  21  Conn.,  272 20,  2« 

Wolf  V.  State,  53  Ind.,  SO 78 

Wolfenberger,  State  v.,  20  Ind.,  242 78 

Womackv,  State,  7  Cold..  508 822 

Wong  Ah  Foo,  People  v.,  09  Cal.,  180 0:1 

Woodman  v.  Dana,  52  Me.,  13 107 

Wootlv.  State,  92  Ind.,  209 511 

Woo<l,  Statev.,110ray,85 31 

Wood  v.  Franklin,  97  Ind.,  117 552 

Wood,  State  v.,  110  Ind.,  88 497, 498 

Woods  v.  State,  80  Ark.,  30 43 

Woodward,  People  v.,  31  Hun,  57 342 

Woodward  v.  State,  103  Ind.,  127 117 

Woolt  V.  Clialker,  31  Conn.,  121 4a5, 481 

Wooten,  Ex  imrte,  5  Am.  Cr.  R.,  181 498 

Work  v.  State,  2  Ohio  St.,  290 491 

Y. 

Yerkes,  Com.  v.,  29 Leg.  Int.,  CO 820 

York,  Com.  v.,  9  Mete.,  93 442 

Young,  Reg.  v.,  14  Cox,  C.  C,  114 817,  £81 


c 


Abi 
1. 


i*" 


I 


4. 


AMERICAN 


CRIMINAL  REPORTS 


People  v.  Demousset. 

(71  Cal.,  611.) 

Abduction  :  Previous  unchastity  no  defense  —  Taking  by  force  —  Instruc- 
tions. 

1.  Previous  unchaste  conduct  of  person  abducted.— The  gist  of  the 

offense  of  abduction  of  a  female  under  the  age  of  eighteen,  for  the 
purpose  of  prostitution,  under  Penal  Code  of  California,  section  267,  is 
the  talking  away  of  the  child  against  the  will  of  the  person  having  lawful 
charge  of  lier,  and  it  is  no  defense  that  Mie  child  has  previously  been 
guilty  of  unchaste  conduct,  and  evidence  of  such  conduct  is  not  ad- 
missible. 

2.  Taking  by  force—  Inducement.—  To  constitute  the  crime  of  abduction 

under  Penal  Code  of  California,  section  267,  it  is  not  necessary  that  the 
taking  should  be  by  force,  but  it  will  be  sufficient  if  the  child  was  in- 
duced by  the  defendant  to  leave  the  custody  of  her  mother.' 

3.  Evidence. —  In  an  indictment  for  abduction  under  Penal  Code  of  Cali- 

fornia, section  267,  where  the  girl  abducted  testified  that  the  defend- 
ant suggested  to  her  that  she  should  leave  home  because  he  was 
afraid  that  her  mother  would  find  out  the  relations  existing  between 
thr-  defendant  and  her,  and  that  she  should  leave  on  the  false  pretense 
that  lier  step-father  was  trying,  or  had  tried,  to  have  sexual  intercourse 
witli  her,  and  that  she  left  home  solely  on  the  suggestion  and  in  con- 
sequence of  the  threats  of  the  defendant,  and  the  girl's  mother  testi- 
fied that  she  consented  to  the  girl  going  away  from  home  on  account 
of  this  charge,  and  that  the  defendant  supported  its  truth,  evidence 
that  the  girl  had  in  fact  had  sexual  intercourse  is  immaterial,  as  bear- 
ing solely  on  a  collateral  question,  and  therefore  inadmissible. 

4.  Instructions— General  charqe  —  Particular  point.— Where  the 

court  has  charged,  in  general  terms,  that  if  the  jury  find  that  any 
witness  has  wilfully  sworn  falsely  upon  any  material  point,  the  entire 
testimony  of  such  witness  is  to  be  distrusted,  it  need  not  instruct  the 
jury  that  testimony  upon  a  particular  point  is  material,  and  that  if  a 
certain  witness  has  sworn  falsely  upon  that  point,  his  entire  testimony 
is  to  bo  distrusted. 


1  See  note. 


Vol.  VII  — 1 


2  AMERICAN  CRIMINAL  REPORTS. 

Appeal  from  Superior  Court,  Los  Angeles  County. 
Indictment  for  abduction  under  Penal  Code  of  California, 
section  2C7. 

Ziicien  Shaw  and  James  M.  Damron,  for  appellant. 
Geo.  A.  Johnson,  attorney -general,  for  the  people. 

Bv  THE  Court.  The  defendant  was  convicted  of  the  crime 
of  abduction  for  the  purposes  of  prostitution,  and  sentenced 
to  serve  a  term  of  five  years  in  the  state  prison,  under  sect' on 
2G7  of  the  Penal  Code,  which  reads  as  follows:  "  Every  per- 
son who  takes  away  any  female  under  the  age  of  eighteen 
years,  from  lur  father,  mother,  guardian  or  other  person  hav- 
ing the  legal  charge  of  her  person,  withcjut  their  consent,  for 
the  purpose  of  prostitution,  is  punishable  by  imprisonment  in 
the  state  prison  not  exceeding  five  years,  and  a  fine  not  ex- 
ceeding 81,000." 

The  court  instructed  the  jury  as  follows:  "  If,  from  the  evi- 
dence, the  jury  believe  that  Augustine  Coela  was  a  female 
child  under  eiglitcen  years  of  age,  in  the  legal  charge  of  her 
mother,  and  that  the  defendant  took  her  away,  as  alleged  in 
the  information,  for  the  purpose  of  prostitution,  they  should 
find  the  defendant  guilty  as  charged." 

It  is  claimed  that  this  instruction  is  erroneous  because  it 
omits  the  element  of  the  previous  chaste  character  of  the 
female,  and  because  it  does  not  inform  the  jury  that  the  taking 
must  have  been  without  the  consent  of  the  parent.  It  will  be 
observed  that  the  section  says  nothing  about  the  chastity  of 
the  female.  The  law  is  intended  to  protect  the  chaste  and  re- 
claim the  erring;  to  protect  parents  and  guardians  in  their 
custody  and  care  of  minor  females,  without  regard  to  the 
character  of  such  female  for  chastity,  and  the  family  from  sor- 
row and  disgrace.  "We  are  not  disposed,  in  the  construction  of 
this  section,  to  interpolate  any  phrase  that  will  detract  from 
its  effectiveness  in  this  regard. 

In  other  portions  of  its  charge  the  court  said  to  the  jury : 
"  Before  you  can  convict  the  defendant,  you  must  be  satisfied, 
to  a  moral  certainty,  not  only  that  the  defendant  took  the  girl 
away  from  her  parents  without  their  conso-^  t,  but  also  that  he 
took  her  away  for  the  purpose  of  prostitution.    The  word 


PEOPLE  V.  DEMOUSSET. 


3 


*  prostitution '  in  the  statute  does  not  mean  sexual  intercourse 
with  some  particular  man,  or  with  one  man  only,  but  it  means 
to  offer  freely  and  openly  to  an  indiscriminate,  common  inter- 
course with  men."  This  charg[e,  in  connection  with  the  lan- 
guage of  the  instruction  objected  to  —  "took  her  awa}'^  as 
alleged  in  the  information"  — is  a  sufficient  answer  to  the  sec- 
o.id  ground  of  objection. 

The  court  further  instructed  the  jury:  "The  law  does  not 
require  that  the  taking  must  bo  by  force.  If  the  child  was  in- 
duced by  the  defendant  to  go  away  from  the  custody  and  care, 
of  her  mother,  it  is  a  sufficient  taking  away  under  the  stat- 
ute." It  is  said  that  this  instruction  is  erroneous,  in  that  it 
leaves  out  of  the  case  all  question  of  the  character  of  the  in- 
ducements, and  does  not  even  require  that  they  should  have 
been  used  fraudulently.  We  think  that  the  instruction,  read 
in  connection  with  the  preceding  instruction,  was  correct. 
The  court  immediately  before  had  said  to  the  jury:  "The  gist 
of  this  offense  is  the  taking  away  of  the  child,  against  the  will 
of  the  person  having  lawful  charge  of  her,  for  the  purpose  of 
prostitution."  It  is  seldom  possible  for  the  court  to  give  the 
whole  law  of  the  case  to  the  jury  in  one  sentence.  The  charge 
must  be  read  in  its  entirety.  In  this  instruction  the  court 
simply  said  to  the  jury  that  a  physical  carrying  away  is  not 
required  to  constitute  the  taking,  but  that  inducements  are 
sufficient. 

The  girl  had  given  evidence  to  the  effect  that  the  defendant 
had  administered  drugs  to  her  in  order  to  cause  her  to  submit 
to  sexual  intercourse  some  days  prior  to  the  time  of  the  al- 
leged abduction.  The  court  was  asked  by  the  defendant  to 
instruct  the  jury  that  this  alleged  giving  of  drugs  was  mate- 
rial, and  that,  if  she  testified  falsely  upon  that  point,  she  was  to 
be  distrusted  as  to  her  whole  testimony.  The  court  refused 
to  give  such  instruction,  on  the  ground  that  it  was  calculated 
to  mislead  the  jury,  and  was  not  supported  by  the  evidence. 
The  court,  however,  did  instruct  the  jur}':  "  If  you  find  that 
any  witness  has  wilfully  sworn  falsely  upon  any  material 
point,  then  the  entire  testimony  of  such  witness  is  to  be  dis- 
trusted." "We  think  this  was  sufficient.  The  jury  may  or  may 
not  have  considered  the  conduct  of  the  defendant  on  the  oc- 
casion referred  to  as  in  any  way  bearing  upoi  the  question  of 


fp 


4  AMERICAN  CRIMINAL  REPORTS. 

guilt  or  innocence  of  the  crime  here  charged.  The  court  is  not 
required  to  instruct  the  jury  as  to  the  materiality  of  particular 
circumstances.  The  ruling  of  the  court  on  the  admissibility  of 
the  evidence  was  a  sufficient  action  on  its  part.  It  will  bo 
presumed  the  jury  gave  it  proper  consideration.  As  counsel 
for  defendant  states  in  his  brief:  "  The  circumstances  did  not 
necessarily  prove  any  element  of  crime." 

The  defendant  offered  to  show  that  the  girl,  Augustine 
Coela,  had,  prior  to  the  alleged  abduction,  had  sexual  inter- 
course with  a  number  of  men.  The  offer  was  rejected,  and  an 
exception  was  reserved.  We  are  unable  to  see  how  such  tes- 
timony could  be  material.  Want  of  chastity  is  no  defense,  and 
if  the  defendant  could  show  that  the  girl  made  the  first  pro- 
posal, and  went  willingly  with  him,  it  would  be  immaterial ; 
for  the  gist  of  the  offense,  as  the  court  told  the  jury,  "  is  the 
taking  away  of  the  child,  against  the  will  of  the  person  hav- 
ing lawful  charge  of  her,  for  the  purpose  of  prostitution." 

The  defendant  further  offered  to  sliow  that  the  girl  had  had 
illicit  intercourse,  frorii  time  to  time,  with  the  step-father,  but 
the  court  excluded  it.  The  girl  had  testified,  in  substance, 
that  the  defendant  suggested  to  her  that  she  should  leave 
home,  because  he  was  afraid,  if  she  stayed  there,  her  mother 
would  find  out  what  they  had  been  doing,  and  that  she  should 
leave  on  the  false  pretense  that  her  step-father  was  trying,  or 
had  tried,  to  have  intercourse  with  her;  and  that  she  made 
all  the  trouble  that  arose  on  account  of  this  charge  because 
she  was  afraid  of  the  defendant,  and  without  any  real  founda- 
tion for  it,  but  solely  on  the  suggestion  and  in  consequence  of 
the  threats  of  the  defendant.  The  girl's  mother  testified  that 
she  consented  to  the  girl  going  away  from  home  because  of 
this  charge,  and  that  the  defendant  supported,  or  acquiesced 
in,  the  truth  of  the  charge. 

The  defendant  claims  that  he  never  made  any  such  proposi- 
tion to  the  girl,  but,  on  the  contrary,  that  the  girl  voluntarily 
told  him  of  it,  and  that  he  was  much  shocked  to  hear  it;  that 
her  step-father  had  threatened  to  kill  her  on  account  of  her 
statement  to  her  mother  that  the  step-father  had  attempted  to 
have  illicit  intercourse  with  her;  and  that  he  (defendant)  as- 
sisted her  to  get  Dway,  because  the  step-father  might  kill  her. 

During  the  cross-examination  of  the  girl's  mother,  counsel 


U 


PEOPLE  V.  DEMOUSSET. 


for  defendant  proposed  to  show  that  sht  (the  mother)  had  per- 
mitted her  daughter  to  sleep  with  the  stei>  father,  at  the  store, 
during  seven  or  eight  months  in  the  yev.c  1S85,  and  to  follow 
that  up  by  showing  that  illicit  relations  existed  between  them, 
and  that  ho  wanted,  at  this  point,  to  show  the  condition  of 
things  that  existed.  The  offer  was  excluded,  and  the  defend- 
ant excepted. 

Caspar  Shaffer,  a  witness  called  on  behalf  of  defendant, 
was  asked  this  question:  "State  to  the  jury  if,  during  the 
month  of  January,  1885,  while  you  were  at  the  shop  kept  by 
yourself  and  Mr.  Lorraine,  j'ou  saw  anything  of  an  improper 
relation  existing  between  the  witness  Augustine  Coela  and 
Mr.  Lorraine,  her  step-father."  The  question  was  objected  to, 
the  objection  sustained,  and  an  exception  taken  by  the  defend- 
ant. 

Defendant  offered  to  show  by  another  witness  that  Augus- 
tine and  her  step-father  had  had  sexual  intercourse  with  each 
other  during  the  month  of  September  or  October,  1885.  The 
same  ruling  was  made  by  the  court,  and  an  exception  taken 
by  the  defendant. 

We  see  no  error  in  the  exclusion  of  the  testimony  offered. 
The  question  to  which  it  was  addressed  was  collateral  to  the 
issue  involved,  and  the  evidence  was  accordingly  immaterial. 

The  evidence  supports  the  verdict. 

The  judgment  is  aflirmed. 

Pateksox,  J.  I  dissent.  Upon  the  testimony  in  the  case  it 
became  a  most  pertinent  inquiry  for  the  jury  whether  the  girl 
was  taken  by  the  defendant  to  save  her  from  the  alleged  crim- 
inal assaults  by  her  step-father,  or  for  the  purpose  of  prostitu- 
tion. The  girl  had  said  to  her  mother  that  she  would  not 
remain,  and  had  written  to  her  that  she  would  not  return,  be- 
cause she  was  afraid  the  father  would  "  bother  her  again." 
On  the  witness  stand  she  said  that  her  former  statements  in 
that  regard  were  untrue,  and  that  the  story  had  been  con- 
cocted by  the  defendant.  On  which  occasion  did  she  tell  the 
truth?  Did  the  defendant  frighten  her  into  the  assertion  of  a 
false  charge?  The  znother  testified  that  she  heard  the  step- 
father say  he  would  kill  the  girl  if  she  told  such  things  about 


i     'h 


^  AMERICAN  CRIMINAL  REPORTS. 

him.  Did  this  threat  of  the  step-father  frighten  the  girl  into 
giving  false  testimony  by  denying  the  truth  of  the  charge  she 
had  made?  Upon  the  determination  of  tiiese  inquiries  must 
have  depended  largely  the  question  of  the  defendant's  motives, 
as  well  as  the  question  of  the  mother's  consent,  and  anything 
tending  to  show  which  statement  was  correct  must  be  material. 
The  conduct  wliicli  was  imputed  to  the  step-father  was  most 
unreasonable,  unnatural  and  debased,  and  the  story  was  corre- 
spondingly improbable  and  incredible.  Upon  its  face  it  carried 
the  badge  of  falsity.  The  jury  would  be  slow  to  believe  that 
the  girl  ever  told  the  defendant  such  a  story.  If,  however, 
the  jury  knew,  as  a  matter  of  fact,  that  the  statement  was 
true,  and  that  the  mother  knew  it,  much  lefs  weight  would  be 
given  to  the  testimony  of  the  mother  and  dau[-hter  upon  the 
most  important  questions  in  the  case,  viz.,  whether  the  girl 
went  with  the  consent  of  the  mother,  and  whether  defendant 
took  her  for  the  purpose  of  indiscriminate  prostitution.  If  the 
defense  of  the  defendant  had  been  tliat  he  took  the  girl  to 
save  her  from  cruel  and  inhuman  punishment,  such  as  burning 
or  tying  up  by  the  thumbs,  and  similar  questions  of  veracity 
between  himself  and  the  girl  had  arisen,  can  it  be  doubted 
that  the  truth  of  the  fact  claimed  might  be  proved  to  show 
that,  however  improbable  and  incredible  his  statement  as  to 
his  reasons  might  appear  to  be,  it  is  nevertheless  true?  While 
lewd  conduct  is  no  defense,  it  may  often  be  an  important  and 
material  circumstance  tending  to  explain  the  taking  away,  as 
well  as  to  show  the  credibility  of  the  witness  upon  some  ma- 
terial matter  to  which  she  has  testified,  and  to  explain  the  mo- 
tives of  the  defendant.  I  think  that  the  evidence  offered  to 
show  the  relations  existing  in  fact  between  the  step-father  and 
the  daughter  was  most  material  for  these  purposes,  and  should 
have  been  admitted. 

Note.— Where  a  child  having  a  parent  or  guardian  is  kidnaped,  the  of- 
fense niny  be  complete  under  the  Georgia  code  if  the  parent  or  guardian 
does  not  consent,  without  regard  to  the  consent  of  the  child.  Gravett  v. 
State,  nGa.,\Ql. 

Under  the  statute  of  Louisiana  which  prohibits  the  forcible  seizure  and 
carrying  of  a  person  from  one  part  of  the  state  to  another,  or  the  imprison- 
ment or  the  secreting  of  any  person,  the  indictraer  t  need  not  charge  that  he 
or  she  was  forciblj  imprisoned.    Such  indicf-.ut.  \t  is  sustained  by  proof  that 


H'^ 


CARNEY  V.  STATE.  7 

the  carrying  was  from  one  part  of  a  city  to  another.    State  v.  Baekarow, 
38  La.  An.,  810. 

Section  283  of  tl>e  Penal  Code  of  Nev  Yorli  does  not  constitute  tlje  em- 
ployment of  a  f«mnlf,  under  tlie  hge  of  sixteen  years,  for  inimorul  purposes, 
(1  criminal  otfense,  unless  it  is  acvomparied  with  the  talcing  of  her  person 
by  some  active  agency  for  sucli  purpose.  People  v.  Plath,  6  Am.  Cr.  R,,  1. 
Duplicity  in  information  for,  see  State  v.  Ooodwin,  5  Am.  Cr.  K.,  1. 


'm 


Cakney  v.  State. 

(84  Ala.,  7.) 

Abandonment  of  family. 

1.  Husband  and  wife  — Abandonment.— In  a  prosecution  under  Code 

of  Alabama,  1880,  section  4047,  for  abandoning  one's  wife  and  child, 
and  leaving  them  in  danger  of  becoming  a  burden  to  the  public,  it  need 
not  be  shown  that  tlic  danger  of  their  becoming  a  burden  to  the  public 
is  immediate  or  imminent ;  but  it  is  sufficient  to  show  tliey  will  prob- 
aV>ly  become  such  a  burden  within  a  reasonable  time,  and  in  the  ordi- 
nary course  of  events. 

2.  Evidence  of  wife's  infidelity. —  In  such  case,  evidence  that  defend- 

ant went  to  an  ai-signution-house,  where  he  heard  voices  of  women, 
and  saw  an  unltnown  female  clandestinely  escaping  from  the  prem- 
ises, and  that  the  keei^r  of  the  house  subsequently  told  him  that  such 
female  was  his  wife,  was  properlj'  excluded  as  too  remote  to  establish 
the  identity  of  the  female  as  defendant's  wife. 

3.  Evidence  that  the  defendant's  wife  had  not  earned  her  own  living 

since  the  birth  of  her  child,  and  that  her  brother-in-law,  who  was  sup- 
porting her,  had  a  large  family,  is  admissible,  as  tending  to  show  the 
probability  of  the  family  becoming  a  burden  to  the  public. 

City  Court  of  Mobile;  Hon.  O.  J.  Seraraes,  Judge. 

This  was  a  prosecution  of  the  appellant  for  the  abandon- 
ment of  his  wife  and  child.  The  witnesses  for  the  state  testi- 
fied that  William  Carney,  an  able-bodied  man  and  able  to 
support  his  wife,  was  married  to  Kate  Nicholas  in  February, 
1886,  and  lived  with  her  eight  days,  and  then  abandoned  her; 
that  said  Kate  Nicholas  was  the  mother  of  a  child  before  she 
married  the  defendant,  and  that  after  the  marriage  the  de- 
fendant admitted  that  he  was  the  father  of  the  child;  and 
that  the  child  and  mother  had  been  supported  and  maintained, 
both  before  and  after  the  marriage  of  the  mother,  by  her 


8 


AMERICAN  CRIMINAL  REPORTS. 


brother-in-law.  The  defendant  testified  that,  after  he  had  been 
married  eight  days,  he  had  to  leave  home  to  sit  up  with  his 
brother's  corpse;  that  he  was  absent  from  home  all  one  nighty 
and  mitil  about  12  o'clock  the  night  following;  that  his  clothes 
got  wet,  auu  he  went  home  to  get  some  dry  clothes;  that  his 
wife  came  to  the  front  door  in  her  night-clothes,  and  let  him 
in;  that  when  he  got  in  he  found  his  bedroom  door  ajar,  and 
went  in  there;  that  when  he  went  in  he  saw  some  man's  shoes 
by  the  fire-place,  and  asked  whose  they  were,  aad  his  wife  re- 
plied that  they  were  her  brother's  shoes,  and  about  that  time 
he  heard  some  one  move  in  the  bed,  and,  as  he  looked  around, 
a  man  turned  his  face  towards  the  wall,  and  pulled  the  cover 
of  the  bed  over  his  head;  that  the  cover  on  the  outside  of  the 
bed  was  thrown  back,  and  the  bed  looked  as  if  two  persons 
had  been  occupying  it;  that  he  took  his  clothes  and  left,  and 
never  went  back.  The  defendant  also  denied  that  he  was  the 
father  of  his  wife's  child.  A  brother  of  defendant's  wife  testi- 
fied, in  rebuttal,  that  he  slept  in  his  sister's  bed  that  night 
until  2  or  3  o'clock,  and  that  he  lived  in  the  same  house  with 
his  sister.  The  defendant  also  ])roducod  evidence,  by  cross- 
examination  of  the  state's  witnesses,  that  his  wife  was  a  woman 
of  good  health,  and  had  been  supported,  both  before  and  after 
her  marriage,  comfortably  and  well  by  her  brother-in-law,  and 
that  she  was  still  being  so  supported.  The  state  asked  the 
witness  Judge,  who  so  supported  the  defendant's  wife,  whether 
he  also  si  pported  his  mother.  The  defendant  objected  to  this 
question,  but  the  court  overruled  the  objection.  The  witness 
answered  that  he  did.  The  defendant  then  offered  to  testify 
that  he  went,  in  consequence  of  a  message  that  i:e  had  re- 
ceived, to  an  assignation-house  in  search  of  his  wife,  and  was 
refused  admittance;  but,  while  watching  from  the  outside, 
heard  female  voices  within,  and  saw  a  woman,  whom  he  be- 
lieved to  be  his  wife,  step  out  the  back  way,  and  get  over  the 
fence,  and  that  the  keeper  of  the  assignation-house  subsequent!}' 
told  the  defendant  that  such  wonuvn  was  his  wife,  and  that  she 
frequently  visited  such  house  of  prostitution.  This  was  before 
the  defendant  saw  a  man  in  the  bed  of  his  wife,  liut  the  court 
refused  to  allow  him  to  so  testify.  There  was  a  variance  be- 
tween the  testimony  of  the  witness  Judge  and  that  of  his  wife, 
both  of  whom  were  state  witnesses,  as  to  the  health  of  the 


CARNEY  V.  STATE. 


9 


defendant's  wife;  the  witness  Judge  testified  that  it  was  not 
good,  while  his  wife  testified  to  the  contrary.  The  defendant 
asked  said  Judge  whether  or  not  his  wife  had  as  good  an  op- 
portunity of  judging  of  the  same  as  he  himself  had.  The  court 
sustained  an  objection  to  this  question.  The  court  refused  to 
give  two  charges  requested  by  the  defendant,  which,  in  sub- 
stance, are  set  out  in  the  opinion 

G.  L.  iSi  II.  T.  Smith,  for  appellant. 

T.  jy.  McClellan,  attorney -general,  for  the  state. 


SoMEuviLLE,  J.  The  defendant  Avas  tried  and  convicted  for 
abandoning  his  family,  and  leaving  them  in  danger  of  becom- 
ing a  burden  to  the  public  —  an  offense  which  is  made  pun- 
ishable by  line  and  imprisonment  under  the  provisions  of  the 
statute.     Code  ISSG,  §  4017;  Code  1S7G,  §  4218. 

The  two  charges  requested  by  the  defendant,  and  refused 
by  the  court,  assort,  in  efi"ect,  that  the  statute  must  be  con- 
strued to  mean  that  the  danger  of  becoming  a  burden  to  the 
public,  in  which  the  abandonment  of  the  husband  or  parent 
places  his  famil}',  must  L  immediate  or  imminent,  and  not  de- 
pendent on  any  future  contingency,  however  probable  in  the 
oidinary  course  of  events.  This  construction,  in  our  jud;: 
uient,  is  not  tenable.  The  members  of  the  defendant's  family, 
whom  ho  is  here  charged  with  having  abandoned,  are  his  wife 
and  a  cliild  of  tender  years.  They  were  thrown  upon  the 
charity  of  a  brother-in-law  of  the  wife,  who  possessed  but 
meager  means,  and  was  under  no  legal  liability  whatever  to 
furnish  them  mamtenauce.  The  evidence  tended,  moreover,  to 
show  that  tlie  wile  and  child  owned  no  property,  and  were 
unable  to  supjiort  themselves,  either  for  want  of  ability  or  op- 
portunitN'.  It  was  for  the  jury  to  say  whether  the  evidence 
satislied  tliem  beyond  a  reasonable  doubt  that  the  defendant's 
family,  under  all  the  circumstances  of  the  case,  would  prob- 
ably become  a  burden  to  the  public  by  reason  of  any  contin- 
gency likely  to  happen,  within  a  reasonable  time,  and  in  the 
ordinary  course  of  events.  Such  contingency  need  not  be  im- 
mediate, nor  ought  it  to  be  too  remote  or  speculative.  It 
should  be  one  that  may  be  reasonably  apprehended  between 
these  two  extremes  of  time.    The  instructions  requested  on  this 


■f. 


10 


AMERICAN  CRIMINAL  REPORTS. 


point  were  properly  refused.  The  statute  cannot  be  construed 
to  make  it  criminal  for  one  to  abandon  his  wife  under  any  and 
all  circumstances.  If  she  be  guilty  of  adultery,  as  the  evidence 
tends  to  show  the  defendant's  wife  was  in  this  case,  he  would 
certainly  be  excused  in  leaving  her  as  a  preliminary  step  to 
making  application  to  the  chancery  court  for  a  divorce  on  this 
ground.  To  continue  this  marital  relation  with  her,  after  in- 
formation of  her  guilt,  would  be  a  condonation  of  it,  and 
would  operate  to  bar  his  right  to  claim  a  severance  of  the 
marriage  tie.  There  can  be  no  guilt  where  there  is  legal  ex- 
cuse or  justification  for  the  act  charged.  But,  while  this  is 
true,  abandonment  is  not  excused  by  mere  susjjicion  of  the 
wife's  infidelity,  based  on  rumors  or  other  hearsay  evidence. 
It  is  not  enough  that  he  may  have  been  informed  of  alleged 
facts  by  others  which  would  justify  him  in  believing  her  to  bo 
guilty.  The  risk  of  abandonment  is  his  own.  The  fact  of  her 
guilt  must  be  shown,  and  the  burden  is  on  the  husband  to 
show  it. 

The  circuit  court  properly  excluded  all  the  evidence  relating 
to  what  occurred  at  a  certain  assignation-house  kept  by  one 
Cora  Levy,  a  prostitute,  and  her  declaration  made  to  the  de- 
fendant regarding  his  wife.  This  was  all  hearsay,  except  the 
statement  that  defendant  went  to  the  house,  and  was  refused 
admission;  that  he  heard  the  voices  of  women  in  the  house, 
whose  identity  the  keeper  attempted  to  conceal ;  and  that  de- 
fendant saw  some  unknown  female  clandestinely  escaping  from 
the  premises  by  the  back  way.  This  evidence  did  not  tend  to 
identify  this  female  as  the  defendant's  wife,  being  too  remote 
for  this  purpose.  Any  woman,  not  a  common  prostitute,  found 
in  such  a  place,  would  probably  seek  to  escape  observation  by 
strangers  who  might  persist  in  entering  the  premises  unin- 
vited. 

It  was  competent  to  prove  that  the  defendant's  wife,  Mrs. 
Carney,  had  not  earned  her  living  since  the  birth  of  her  child, 
and  also  that  her  brother-in-law.  Judge,  who  was  supporting 
her,  had  as  many  as  four  children,  and 'vas  also  supporting  hil 
own  mother.  These  facts  all  bore  on  the  question  as  to  the 
probability  of  ^Irs.  Carney  becoming  a  burden  to  the  public, 
because  it  tended,  on  the  one  hand,  to  rebut  the  inference 
that  she  was  able  to  maintain  herself,  and,  on  the  other,  to 


BENEDICT  V.  STATE. 


11 


show  the  difficulty  attending  the  ability'  of  her  brother-in-law 
to  maintain  her  by  continuing  the  exercise  of  his  charity 
towards  her.  It  was  for  the  jury  to  say  what  was  the  prob- 
ability of  the  termination  of  this  benefaction,  which  was  of 
grace,  and  not  of  legal  duty. 

The  rulings  of  the  court  are  free  from  error,  and  the  judg- 
ment must  be  afHrmed. 


Benedict  v.  State. 

(44  Ohio  St.,  679.); 

Abortion:  Practice  —  Hung  jury — Privileged  communicatiom. 

1.  Hung  JURY  —  DiscHAUGE  —  Amendment  of  docket  nunc  pro  tunc. — 

After  the  submission  of  a  criminal  case  to  a  jui'v,  their  retirement  to 
their  room  for  deliberation,  and  their  failure  to  agree  upon  a  verdict, 
they  were  discharged  by  the  court.  The  following  entry  was  there- 
upon made  by  (he  court  upon  the  trial  docket:  "  Jury  impaneled  and 
sworn.  Trial  had.  Jury  discharged  for  the  reason  that  th"re  was  no 
probability  of  jurom  agreeing.  Recognizance  fixed  at  $1,OOC.  Con- 
tinued." At  the  second  term  of  the  court  thereafter  the  defendant 
was  again  put  upon  his  trial  to  a  jury  upon  the  same  indictment.  He 
moved  the  court  to  discharge  him  from  further  prosecution,  offering 
in  evidence  in  support  of  his  motion  the  journal  entry  of  the  proceed- 
ings at  the  former  trial,  from  which  had  been  omitted  the  recital  from 
the  court  docket  of  the  reason  of  the  discharge  of  the  jury.  There- 
upon the  state  moved  the  court  to  supply  such  omission  by  an  order 
nunc  pro  tunc,  which  was  done,  the  motion  to  discharge  the  defend- 
ant overruled,  and  the  trial  allowed  to  proceed.  Held,  there  was  no 
error  in  such  action  of  the  court. 

2.  Attorney   and  client  —  Privileged   communications.— The  state- 

ments of  one  accused  of  crime,  made  to  one  whose  regular  employ- 
ment is,  and  for  many  years  has  been,  practicing  law  before  justices 
of  the  peace,  and  wliose  aid  and  counsel  is  sought  as  such  attorney  or 
counselor,  such  statements  being  made  in  answer  to  the  incjuiries  of 
such  adviser  as  to  what  the  facts  concerning  the  alleged  offense  were, 
are  privileged  communications,  and  it  is  error  to  allow  such  adviser  to 
testify  upon  the  trial  of  the  accused  to  the  statements  so  made,  al- 
though the  witness  had  not  been  admitted  to  practice  in  the  courts  of 
the  state.  • 

Error  to  Common  Pleas,  Meigs  County. 
Indictment  for  procuring  an  abortion. 

'  See  note. 


12 


AMERICAN  CRIMINAL  REPORTS. 


At  the  January  term  of  the  court  of  common  picas  of  Meigs 
county,  188G,  tlio  plaintiff  in  error,  Arthur  E.  Benedict,  was 
put  upon  his  trial  to  a  jury  upon  an  indictment  char;;,nng-  him 
with  procuring  an  abortion  upon  one  Maggie  Kathburn. 
After  the  submission  of  the  case  to  the  jury,  and  after  they  had 
been  for  some  time  in  their  room,  they  came  into  court  and 
reported  tliat  they  could  not  agree  upon  a  verdict.  The  court, 
being  satisfied  that  there  was  no  probability  of  an  agreement, 
discharged  the  jury  and  made  an  entry  upon  the  court  docket 
in  the  following  words:  "Jury  impaneled  and  sworn.  Trial 
had.  Jury  discharged  for  the  reason  that  there  was  no  prob- 
ability of  jurors  agreeing.  Itecognizance  fixed  at  i  1,000.  Re- 
cognizance with  sureties  entered  into.    Continued." 

The  clerk  of  the  court,  in  making  up  the  journal,  by  inad- 
vertence^ omitted  to  journalize  the  statement  from  the  court 
docket  that  there  was  no  probability  of  the  jurors  agreeing. 
No  exception  to  the  action  of  the  court  in  discharging  the  jury 
was  made  or  taken  by  the  prisoner. 

At  the  September  term  of  the  court,  ISSC,  being  the  second 
term  after  the  discharge  of  the  jury,  the  prisoner  was  again 
put  upon  his  trial  upon  the  same  indictment,  when,  after  the 
jury  was  sworn,  the  prisoner  moved  the  court  in  writing  to 
discharge  him  from  further  prosecution  in  the  case  for  the  al- 
leged reason  that  at  the  January  term  of  the  court,  1886,  a 
jury  was  duly  impaneled  and  sworn  in  the  case,  and  after  hear- 
ing the  testimony,  arguments  of  counsel,  and  charge  of  the 
court,  retired  to  their  room  to  consider  of  their  verdict,  and 
afterwards  returned  into  court  without  delivering  any  ver- 
dict; and  that  thereupon  the  court,  without  consent  of  the 
defendant,  discharged  the  jury  from  further  consideration  of 
the  case,  without  slating  upon  the  journal  of  the  court  any 
reason  for  so  doing.  Tlie  only  evidence  offered  to  sustain  this 
motion  was  the  journal  entry  of  tlie  order  above  mentioned 
discharging  the  jury,  from  which  was  omitted  tiie  statement 
that  there  was  no  probai>ility  of  the  jurors  agreeing.  There- 
upon the  state  moved  the  court  for  a  nniw  pro  tunc  order  to 
be  entered  as  of  the  January  term,  1880,  reciting  that  tlie  jury 
was  discharged  at  that  term  for  the  reason  that  tliere  was  no 
probability  of  the  jurors  agreeing.  The  only  evidence  offered 
m  support  of  this  motion  was  the  entry  made  by  the  pre- 


BENEDICT  V.  STATE. 


18 


siding  judge  on  the  court  docket  at  the  January  terra,  1886, 
which  is  given  above.  The  motion  to  enter  the  nunc  pro  tunc 
order  was  sustained,  to  which  the  prisoner  excepted.  There- 
upon the  court  overruled  the  motion  to  discharge  the  prisoner, 
to  which,  also,  he  excepted. 

Upon  the  trial  the  state  gave  evidence  tending  to  prove  that 
the  prisoner  committed  the  offense  charged  against  him  on 
the  12th  of  June,  1884,  and  there  was  no  evidence  tending  to 
prove  any  attempt  to  commit  it  on  any  other  day.  The  pris- 
oner offered  himself  as  a  witness  in  his  own  behalf  to  testify, 
among  other  things,  that  several  days  after  the  12th  of  June, 
1884,  Maggie  Rathburn  told  him  that  nothing  came  of  the  at- 
tempted abortion,  and  that  she  was  still  pregnant,  and  re- 
quested him  to  continue  his  attempts  at  abortion.  The  objec- 
tion of  the  state  to  the  testimony  so  offered  was  sustained  by 
the  court,  to  which  the  prisoner  excepted. 

Tiiereupon  the  prisoner  offered  as  a  witness  one  Clara  Bene- 
dict, by  whom  he  offered  to  prove  that  Maggie  Eathburn  had 
said  to  her,  on  the  2d  of  July,  1884,  that  she  (Maggie)  was 
still  pregnant,  and  that  she  stood  up  and  pointed  to  her  per- 
son, saying:  "  Put  your  hand  on  me  there,  and  you  will  dis- 
cover that  I  am  still  in  the  family  waj'."  The  objection  of  the 
state  to  this  testimony  was  sustained  by  the  court,  to  which 
the  prisoner  excepted.  Thereupon  the  prisoner  offered  in  evi- 
dence two  letters  of  Maggie  Eathburn,  one  addressed  to  the 
prisoner,  and  one  to  Clara  Benedict,  both  written  after  the 
12th  of  Jr.iie,  1884,  and  also  separate  paragraphs  of  each,  as 
distinct  propositions,  but  what  particular  paragraphs  were  so 
offered  is  not  disclosed  by  the  bill  of  exceptions.  Much  of  the 
matter  contained  in  each  letter  is  clearly  irrelevant  to  the 
issue.  The  objection  of  the  state  to  their  admission  in  evi- 
dence was  sustained  by  the  court,  to  which  the  prisoner  ex- 
cepted. 

Upon  the  trial  the  state  offered  as  a  witness  one  James 
Petty,  who  was  asked  if,  at  any  time  in  1884,  after  the  12th  of 
June,  he  had  any  conversation  with  the  prisoner  concerning 
his  relations  with  Maggie  Rathburn.  He  answered  that  he 
had.  Thereupon,  by  leave  of  the  court,  the  counsel  for  the 
prisoner  asked  the  witness  if  he  was  not  an  attorney  at  law, 
and  if  the  conversation  was  not  one  between  him  and  the  pris- 


'■^M 
■■^ 


mmm 


u 


AMERICAN  CRIMINAL  REPORTS. 


oner  in  his  relation  to  the  latter  as  such  attorney.  The  answer  of 
the  witness  was  that  he  followed  the  business  of  practicing  law 
before  justices  of  the  peace,  and  had  done  so  for  many  years,  but 
that  he  had  not  been  admitted  to  the  bar.  He  also  said  that 
the  prisoner  sought  his  aid  and  advice  in  his  capacity  as  such 
counselor  or  attorney.  The  prisoner's  objection  to  the  testi- 
mony of  the  witness  concerning  any  admissions  made  by  the 
prisoner  to  him  was  overruled  by  the  court,  to  which  excep- 
tions were  duly  taken.  The  witness  then  testified  that  in  a 
conversation  which  he  had  with  the  prisoner  after  the  12th  of 
dune,  1884,  ihe  latter  admitted  to  the  witness  that  he  had  at- 
tempted to  procure  an  abortion  upon  one  Maggie  Rathburn  on 
June  12,  1884:,  at  the  time  and  place  named  in  the  indictment. 
On  further  cross-examination  the  witness  said  that  the  pris- 
oner had  come  to  him  at  the  time  of  the  conversation,  and 
asked  his  advice  as  an  attorney  and  adviser,  and  that  the  ad- 
missions were  made  in  reply  to  the  question  of  witness  as  to 
what  the  facts  were.  The  court  overruled  the  motion  of  the 
prisoner  to  rule  out  the  testimony  of  the  witness  relating  to 
the  alleged  admissions,  to  which  exceptions  were  taken. 

The  prisoner  was  convicteJ.  A  new  trial  was  refused,  and 
to  reverse  the  judgment  of  conviction  the  present  proceeding 
in  error  is  prosecuted.  The  errors  assigned  and  relied  upon 
for  a  reversal  of  the  judgment  below  are  the  several  rulings 
which  are  recited  in  the  foregoing  statement  of  facts. 

C.  11.  Grosvenor  and  J.  S.  Giles,  for  plaintiff  in  error. 

J.  A.  Kohler,  attorney-general,  and  J.  II.  Zockart,  for  the 


Owen,  C.  J.  1.  It  is  contended  by  the  plaintiff  in  error 
lliut  upon  the  record  of  the  court  as  it  existed  at  the  time  he 
was  put  upon  his  trial  at  the  September  term,  1S86,  he  was 
entitled  to  his  discharge,  and  that  it  was  not  in  the  power  of 
the  court  to  abridge  or  take  away  that  right  by  so  amending 
the  record  as  to  make  it  appear  that  the  jury,  at  the  former 
trial,  was  discharged  upon  sufficient  ground.  It  is  well  estab- 
lished that  the  discharge  of  a  jury  in  a  criminal  case  without 
the  consent  of  the  defendant,  after  it  has  been  duly  impaneled 
and  sworn,  but  before  verdict,  is  equivalent  to  a  verdict  of 


BENEDICT  V.  STATE. 


15 


acquittal,  unless  the  discharge  was  ordered  in  consequence  of 
such  necessity  as  the  law  regards  as  imperative,  and  that  in 
such  case  the  record  must  show  the  existence  of  the  necessity 
which  required  such  discharge;  otherwise  the  defendant  will 
be  exonerated  from  the  liability  of  further  answering  to  the 
indictment.    Jlwes  v.  State,  24  Ohio  St.,  134. 

Section  7313,  Revised  Statutes,  as  amended  (78  Ohio  L., 
89),  provides  that  "  the  court  may  discharge  a  jury,  without 
prejudice  to  the  prosecution,  for  the  sickness  of  a  juror,  the 
corruption  of  a  juror,  or  other  accident  or  calamity,  or  be- 
cause there  is  no  probability  of  the  jurors  agreeing,  and  the 
reason  for  the  discharge  shall  be  entered  on  the  journal."  It 
is  maintained  by  the  plaintiff  in  error  that  the  discharge  of 
the  jury  at  the  January  term  of  the  court,  without  the  consent 
of  the  defendant,  and  without  entering  upon  the  journal  some 
lawful  ground  for  the  discharge,  was  equivalent  to  an  acquit- 
tal, and  that  the  court  was  without  jurisdiction  to  make  the 
nunc  pro  tunc  order.  Ludlow  v.  Johnston,  3  Ohio,  575,  is  cited 
in  support  of  this  proposition.  The  two  propositions  upon 
which  that  case  proceeded  are:  "(1)  An  order  of  court  au- 
thorizing an  executor  or  administrator  to  sell  decedent's  lands, 
made  when  the  power  of  the  court  had  ceased,  cannot  be  made 
valid  by  entering  it  nunc  i^ro  tunc  as  of  a  preceding  term. 
(2)  An  order  ininc  pro  tunc  cannot  be  founded  upon  mere 
parol  proof  of  what  was  ordered  to  be  done  at  a  previous  term, 
where  there  is  no  written  minute  to  sustain  it." 

In  that  case  the  jurisdiction  of  the  court  over  the  subject- 
matter  of  the  order  made  at  the  prior  term  had  been  taken 
away  by  legislation,  and  the  evidence  relied  upon  to  sustain 
the  order  nunc  pro  tunc  was  exclusively  parol.  Without  dis- 
cussing the  soundness  of  the  propositions  above  quoted,  it  is 
enough  to  say  that  the  facts  of  the  case  at  bar  fail  to  bring  it 
within  either  of  them.  To  sustain  the  assumption  of  counsel 
that  the  court  was  without  jurisdiction  to  make  the  order  nunc 
pro  tunc,  it  is  necessary  to  assume  (1)  that  the  jury  was  dis- 
charged at  the  former  term  without  sufficient  cause;  or  (2) 
that,  if  it  was  not,  there  was  no  power  in  the  court  to  make 
the  order  showing  that  the  discharge  Avas  upon  sufficient 
ground. 

The  first  assumption  is  unwarranted,  and  against  the  real 


16 


AMERICAN  CRIMINAL  REPORTS. 


ill 


*  \ 


facts,  while  the  second  is  an  assumption  of  tl)c  soundness  of 
the  very  proposition  in  controversy  —  that  the  court  was  with- 
out power  to  make  its  records  show  what  had  been  done  by  it 
at  a  former  term,  but  by  inadvertence  omitted  from  the  jour- 
nal. The  principle  is  fundamental  that  every  court  has  a 
right  to  judge  of  its  own  records  and  minutes;  and  if  it  ap- 
pear satisfactorily  to  it  that  an  order  was  actually  made  at  a 
former  term  and  omitted  to  be  entered  by  tlie  clerk,  it  may  at 
any  time  direct  such  order  to  be  entered  upon  the  records  as 
of  the  term  when  it  was  made.  State  v.  J/cAfpin,  4  Ired. 
(Law),  140;  Lttdlow  v.  Johnston,  supra,  575;  Bothev.  liaihcay 
Co.,  37  Ohio  St.,  149;  In  re  Estate  of  Jarrett,  42  Ohio  St.,  194; 
Elliott  V.  Flattor,  43  Ohio  St.,  205;  BurnHt  v.  State,  14  Tex., 
455;  Freem.  Judgm.,  ^§  5G-C8.  This  power  may  be  exercised 
in  criminal  prosecutions  as  well  as  in  civil  cases.  Ex  parte 
Beard,  41  Tex.,  234;  Smith  v.  State,  1  Tex.  App.,  408;  Ev 
parte  Jones,  01  Ala.,  399.  In  the  case  last  cited  the  supreme 
court  sustained  an  order  lumc ]jro  tunc  of  the  trial  court  made 
at  a  term  subsequent  to  the  trial,  showing  the  number  of  days' 
hard  labor  to  which  the  defendant  was  sentenced,  which  had 
been  left  blank  at  the  trial  term.  Nor  are  we  able  to  find  any 
adjudicated  cases  in  which  the  time  for  the  exercise  of  this 
power  has  been  limited.  In  Massachusetts  the  record  of  a 
judgment  was  completed,  b}'  a  mine  pro  tunc  order,  after  the 
lapse  of  twenty  years.  BiKjg  v.  Parl^er,  7  Gray,  172;  Freem. 
Judgm.,  §  50.  That  the  evidence  upon  which  the  court  acted 
was  ample  to  authorize  the  order,  if  there  was  power  to  make 
it,  will  not  be  seriously  questioned.  Metcalf  r.  Metcalf,  19 
Ala.,  319;  Ile<jeler  v.  IlencMl,  27  Cal.,  491;  Freem.  Judgm., 
§61. 

In  the  case  at  bar  the  jury  was  in  fact  discharged  for  the 
reason  that  there  was  no  probability  of  the  jurors  agreeing. 
This  was  one  of  the  grounds  which  authorized  a  discharge  of 
a  jury  in  a  criminal  case  without  prejudice  to  future  prosecu- 
tion upon  the  same  indictment.  The  fact  and  reason  of  the 
action  of  the  court  were  duly  entered  upon  the  court  docket, 
and  all  that  the  court  could  do  was  done.  Judicial  action  was 
taken,  but  there  was  failure  so  to  make  up  the  journal  as  to 
show  such  action.  There  was  no  time  during  that  term  of  the 
court  when  the  prisoner  could  have  availed  himself  of  the  dis- 


BENEDICT  V.  STATE. 


17 


charge  of  the  jur}'.  There  was  no  legal  objection  to  the  im- 
paneling of  another  jury  for  his  trial  at  the  same  term.  Had 
this  been  done,  he  surelx'  could  not  have  urged  that  he  had 
been  virtually  acquitted  b}'  the  discharge  of  a  former  jury 
without  his  consent  and  upon  unauthorized  grounds;  for  he 
certainlv  could  not  have  resisted,  with  any  show  of  serious- 
ness,  the  comf)letion  of  the  record  entry  of  the  action  of  the 
court  at  any  time  during  the  term.  This  serves  to  illustrate 
tliat  in  fact  there  was  nothing  in  the  proceo  lings  of  the  court 
which,  in  legal  effect,  worked  his  discharge.  Let  it  be  sup- 
posed that  at  that  January  term  the  prisoner  had  been  tried 
and  acquitted,  and  the  clerk  had  failed  to  enter  upon  the  jour- 
nal the  fact  that  a  jury  had  been  impaneled,  a  trial  had  and 
the  prisoner  acquitted.  "Would  it  be  claimed,  in  case  of  his 
being  put  upon  his  trial  at  a  subsequent  term,  that  there  was 
no  power  in  the  court  to  direct  tiiat  a  mine  pro  Uinc  order  be 
made  to  show  what  action  had  been  in  fact  taken  by  the  court 
and  jury?  As  no  rights  of  third  parties  could  have  intervened 
in  either  case,  it  is  not  easy  to  see  how  the  two  cases  can  be 
distinguished.  In  either  case  the  question  resolves  itself  into 
one  of  the  power  of  the  court  to  make  its  records  speak  the 
truth,  and  cause  that  to  appear  upon  the  journal  which  in  fact 
had  transpired  in  the  course  of  judicial  proceedings  at  a  former 
term. 

It  is  maintained,  however,  that  the  case  of  Ilarlicard  v. 
Doriat,  21  Ohio  St.,  037,  is  decisive  of  the  case  at  bar.  In 
that  case  the  defeated  party  gave  notice  of  his  demand  of  a 
second  trial,  which  the  court  minuted  upon  the  court  docket. 
It  was  not  carried  into  the  journal.  It  was  held  that  the 
omission  to  journalize  the  notice  could  not  be  supplied  by  an 
order  made  at  a  subsequent  term.  Tlie  statute  provided  (S.  & 
C,  11.55,  §  2)  that  the  party  desiring  a  second  trial  should,  "at 
the  term  of  the  court  at  which  judgment  was  rendered,  enter: 
on  the  records  of  the  court  notice  of  his  demand  for  such 
second  trial."  The  court  simply  say,  in  the  opinion:  "The 
plaintiff  did  not,  at  the  term  of  the  court  at  which  judgment 
was  rendered,  enter  on  the  records  of  the  court  notice  of  his 
demand  for  such  second  trial,  as  provided  by  statute.  The 
proceedings  at  the  subsequent  term  to  supply  this  omission 
could  not  have  that  effect.  It  was  too  late."  It  is  clear  that 
Vol.  VII  — 8 


18 


AMERICAN  CRIMINAL  REPORTS. 


i! 


by  plain  provision  of  the  statnto  it  was  an  indispensable  pre- 
requisite to  tlie  rif,'lit  to  a  second  trial  that  the  party  demand- 
ing it  sliould  enter  on  the  records  of  the  court  notice  of  his 
demand  at  tlio  trial  term.  The  party  was  required  to  sec  to  it 
that  the  entry  was  made.  True,  in  the  case  at  bar,  the  statute 
required  tliatjn  case  of  the  discharge  of  the  jury  before  a  ver- 
dict, '*  the  reason  for  the  discharge  sliall  he  entered  on  the 
journal."  This  can  mean  no  more  than  that  the  record  shall 
plainly  e.xiiihit  the  true  ground  upon  which  the  discharge  of 
the  jury  is  ordered.  The  requirement  that  the  entry  shall  be 
made  at  the  term  at  which  the  order  is  made  is  no  more  em- 
phatic tiuin  the  general  requirement  tliat  all  orders  of  court 
not  otherwise  regulated  by  statute  sliall  be  made  to  ai)poar  of 
record  at  the  time,  or  at  least  of  the  term,  at  which  they  are 
made.-  It  will  not  be  denied  that  it  is  of  importance,  and 
within  the  contemplation  of  the  law,  that  all  the  proceedings 
of  the  court  shall  be  promptly  recorded. 

It  is  to  provide  against  the  contingencies  of  omission  to  do 
this  either  by  accident,  inadvertence  or  other  cause  that  the 
power  to  supi)ly  such  omission  by  orders  made  mnie  jn'o  tunc 
has  been  recognized  from  a  very  early  day.  The  distinction 
between  the  statutory  requirement  in  the  ease  of  demand  for 
second  trial  and  that  concerning  the  discharge  of  a  jury  is  too 
apparent  to  call  upon  us  to  give  the  case  last  cited  controlling 
effect  in  the  present  case.  The  views  we  have  here  expressed 
lead  us  to  the  conclusion  that  the  action  of  the  court  below  in 
supplying  the  omission  to  enter  upon  the  journal  of  the  court 
the  reasons  for  the  discharge  of  the  jury  by  a  nu.ic  2)i'o  tunc 
order,  and  in  refusing  the  application  of  the  prisoner  to  be  dis- 
charged from  further  prosecution,  '  is  authorized. 

2.  That  there  was  no  error  in  rejecting  the  letters  offered  in 
evidence  is  apparent  from  what  appears  in  the  statement  of 
facts  upon  this  branch  of  the  case. 

3.  The  statements  of  Maggie  Eathburn,  Avhich  the  defense 
offered  to  prove  were  made  to  the  prisoner  and  to  Miss  Bene- 
dict, are  claimed  to  have  been  admissible  upon  the  principle 
that,  wherever  the  bodily  or  mental  feelings  of  an  individual 
are  material  to  be  proved,  the  usual  expressions  of  such  feel- 
ings, made  at  the  time  in  question,  are  original  evidence.  A 
thoughtful  consideration  of  the  proposed  testimony  will  make 


grji 
nu 
tio 
re| 

of 


BENEDICT  V.  STATE. 


19 


it  quite  apparent  that  the  statements  offered  relate  rather  to 
the  o|>inion  of  Miss  KathUurn  concerning  her  condition  than 
to  an  expression  of  any  particnhir  bodily  feeling  or  sensation. 
There  was  no  error  in  excliuling  them. 

4.  The  action  of  the  court  below  in  permitting  the  witness 
Petty  to  testify  to  the  admissions  of  the  prisoner  concerning 
the  offense  with  which  ho  stood  charged  presents  a  question 
of  much  dilllculty.  It  may  be  conceded  that  the  most  com- 
monly accepted  view  of  the  profession  is  that  the  privilege 
which  was  asserted  in  the  trial  below  is  conlined  to  couimuni- 
cations  made  to  an  attorney  who  has  authority  to  practice  his 
])rofession  in  courts  of  record.  It  is  equally  true  that  there  is 
a  growing  tendency  in  the  courts  to  extend  the  rule  of  privi- 
lege to  cases  which,  though  not  within  the  letter,  are  within 
the  manifest  spirit  of  the  rule  as  it  is  generally  understood. 
Counsel  have  assumed  that  the  rule  which  our  Civil  Code 
prescribes  applies  as  well  in  criminal  i)roceedings.  This  has 
been  determined  differently  by  this  court  in  iS/ceii  v.  Slate,  20 
Ohio  St.,  3;5:3,  and  in  Schultz  v.  State,  32  Ohio  St.,  2S0,  where 
it  is  held  that  the  rules  of  evidence  contained  in  the  Code  of 
Civil  Procedure  apply  only  to  civil  actions  and  proceedings. 
This  calls  upon  us  to  look  to  the  common  law,  and  the  reason 
and  logic  of  the  question,  to  determine  the  rules  which  are  to 
prevail  in  the  trial  of  criminal  causes. 

It  appears  by  the  bill  of  exceptions  in  this  case  that  Petty 
had  for  many  years  followed  the  business  of  practicing  law  be- 
fore justices,  but  had  not  been  admitted  i,o  the  bar.  It  was  in 
his  capacity  as  such  attorney  that  the  priLoner  sought  his  aid 
and  advice.  The  admissions  made  to  the  witness  were  so 
made  in  reply  to  the  latter's  question  as  to  what  the  facts  were. 
So  far  as  the  record  discloses  the  witness  was  entirely  repu- 
table in  his  community,  and  was  deemed  thoroughly  trust- 
worthy. This  was  presumed  in  his  favor.  He  had  for  many 
years  practiced  law  in  justices'  courts  as  a  regular  employ- 
ment. It  was  very  natural  that  the  prisoner,  charged  with  a 
grave  offense,  should  seek  his  aid  and  counsel.  It  was,  too, 
most  natural  that  the  prisoner,  in  answer  to  his  adviser's  ques- 
tion, should  freely  confide  to  him  the  secrets  which  he  would 
repose  in  no  one  who  did  not  sustain  towards  him  the  relation 
of  legal  adviser.    The  record  discloses  that  the  prisoner  was 


20 


AMEftlCAN  CRIMIITAL  REPORTS. 


not  seeking  simply  the  solace  of  some  confidential  friend  in 
whom  he  might  conlido  in  the  hour  of  his  extremity.  On  the 
contrary,  it  was  the  counsel  of  some  one  of  superior  legal 
learning  and  experience  he  was  seeking,  and  it  was  for  tho 
purpose  of  putting  his  legal  adviser  in  possession  of  tho  facts 
which  would  enable  iiim  to  give  intelligent  and  valuable  legal 
counsel  that  the  confidence  was  reposed.  Indeed,  there  was 
present  evory  element  which  would  invoke  the  application  of 
the  general  rule  upon  this  subject  except  the  mere  form  of  tho 
admission  of  the  adviser  to  practice  in  courts  of  record.  Every 
consideration  of  reason,  justice,  logic  and  fair  play  would  seem 
to  demand  that  the  mere  artificial  distinction  which  the  state 
calls  upon  us  to  enforce  should  be  made  to  yield  to  tho  mod- 
ern tendency  to  apply  the  spirit  and  reason  of  the  rule,  instead 
of  adhering  rigidly  and  sullenly  to  its  letter.  The  privilege 
has  been  held  to  include  scriveners  and  conveyancers  as  well 
as  general  counsel.  1  Wliart.  Ev.,  ."iSl;  Knujht  v.  TurquamJy 
2  Mees.  &  W.,  100;  Carpmael  v.  Powis,  1  Phil.,  G87. 

While  we  find  much  conflict  in  the  authorities  upon  this 
question  we  have  no  disposition  to  attempt  to  harmonize  them, 
but  prefer  to  place  our  solution  of  it,  as  applied  to  this  case, 
upon  the  views  already  expressed,  and  hold  that  tho  witness 
Petty  should  not  have  been  permitted  to  testify  to  the  admis- 
sions made  to  him  by  the  prisoner.  We  are  not  called  upon 
to  declare  the  comprehensive  rule  that  all  statements  made  to 
persons  who  practice  in  justices'  courts,  during  the  course  of 
consultation  upon  legal  controversies,  are  privileged.  We 
simply  declare  that  the  peculiar  facts  of  this  case  called  upon 
the  court  below  to  reject  the  testimony  of  tho  witness  Petty; 
and  in  admitting  it  there  was  error,  for  which  the  judgment 
below  is  reversed. 


Note.—  Dying  declarations. —  In  State  v.  Leeper,  70  Iowa,  748,  •wherein 
the  defendant  was  indicted  for  murder  in  the  second  degree,  perpetrated  by 
unlawfully  causing  and  producing  a  miscarriage  of  a  pregnant  woman, 
from  the  effects  of  which  she  died,  counsel  contended  that  the  statements 
of  the  woman  on  her  death-bed  were  not  competent  as  dying  declarations, 
for  the  reason  that  the  evidence  failed  to  show  that  she  understood  and  be- 
lieved that  she  was  dying,  or  about  to  die.  Answering  this  contention  the 
court  says:  To  our  minds  the  evidence  on  this  point  is  quite  satisfactory. 
Her  physician,  the  defendant,  informed  her  that  she  could  not  recover,  and 
would  soon  die.    She  declared  her  belief  of  her  approaching  death.    In  our 


BENEDICT  V.  STATE. 


81 


opinion  the  district  court  riglitly  admitted  in  evidence  the  statements  of 
tlie  woman  testified  to  by  tlie  witnesses  as  dying  declarations.  Tlieir  com- 
netency  was  a  matter  for  tlie  determination  of  the  court.  State  v,  Elliott, 
45  Iowa,  480.  See  Hei/nolda  v.  State,  4  Am.  Cr.  R.,  153;  Payne  v.  State, 
id.,  155  and  note;  Railing  v.  Com.,  6  id.,  7  and  note. 

Privileged  cuiuinunications, —  Knovvleilf^o  acquired  by  an  attorney  at 
law  in  the  courtse  of  his  professional  ompluyment  and  by  the  direct  verbal 
utterances  of  his  client  is  privileged,  anil  may  not  be  proved  by  the  testi- 
' u'lny  of  the  attorney,  without  the  consent  of  the  client.  Kaiint  v.  Kcsvler, 
114  Pa.  St.,  003. 

In  State  v.  Daicson,  00  Mo,,  149,  upon  the  trial  of  defendants  who  were 
charged  with  stealing,  among  otiier  things,  .flflO  "  of  current  silver  coins 
of  tlie  United  States,"  defendants'  attorney  was  permitted  to  testify  as 
to  the  kind  of  money  defendants  paid  him  as  a  retainer,  to  wit,  $45  in 
silver  ond  $5  in  gold.  For  this  error  tiie  supreme  court  reversed  and 
rcmancied  tlie  cause,  and  in  its  opinion  says: 

"  f^ur  statute,  which  provides  that  an  attorney  shall  not  be  competent  to 
testify  'concerning  any  communication  made  to  him  by  his  client  in  that 
relation,  or  his  advice  thereon,  without  the  consent  of  such  client,'  is  but 
declaratory  of  the  common  law.  It  was  not  designed  to,  nor  does  it,  narrow 
the  common-law  privilege.  Nor  at  common  law  was  the  privilege  oonfined 
to  verbal  or  written  communications  made  by  the  client  to  his  attorney,  but 
extended  as  well  to  information  communicated  by  the  client  to  the  attor- 
ney by  otiier  means. 

"  In  tlie  case  of  liobson  v.  Kemp,  5  Esp.,  52,  Lord  EUenborough  said :  '  This 
is  a  transaction  with  whicli  the  party  has  only  bcconw  acquainted  from 
being  employed  as  an  attorney.  Tlie  act  cannot  be  stripped  of  the  confi- 
dence and  communication  as  an  attorney,  the  witness  being  then  acting  in 
that  character.  One  sense  is  jtrivileged  as  well  as  another.  He  cannot  be 
said  to  be  privileged  as  to  what  he  liears,  but  not  as  to  what  he  sees,  where 
the  knowledge  acquired  as  to  both  has  been  from  liis  situation  as  an  attor- 
ney.' 

"  'Tlio  foundation  of  this  rule  is  not  on  account  of  any  particular  import 
tance  which  the  law  attributes  to  the  busiiie!<s  of  the  legal  professors,  or  any 
particular  disposition  to  afford  them  protection ;  but  it  is  out  of  regard  to 
tlie  interests  of  justice,  whicli  cannot  be  upholden,  and  to  the  administra- 
tion of  justice,  which  cannot  go  on,  without  the  aid  of  men  skilled  in  juris- 
prudence, in  the  practice  of  the  courts,  and  in  matter  affecting  rights  and 
obligations  which  form  the  ubject  of  all  judicial  proceedings.'  Lord 
Brougham  in  Greenough  i\  Gaslcell,  7  Eng.  Ch.,  98. 

"  'Jlr.  Greenleaf  in  his  work  on  Evidence  says  that  'the  great  object  of 
the  rule  seems  plainly  to  require  that  the  entire  professional  intercourse  be- 
tween client  and  attorney,  whatever  it  may  have  consisted  in,  should  be 
protected  by  professional  secrecy.'    Vol.  1,  §  240. 

"  '  If  such  communications  are  not  protected,  no  man  would  dare  consult 
a  professional  adviser  with  a  view  to  his  defense,  or  to  the  enforcement  of 
his  rights ;  and  no  man  could  safely  come  into  court,  either  to  obtain  redress 
or  to  defend  himself.'  Lord  Brougham  in  Bolton. v.  Corporation  of  Liver- 
pool, 0  Eng.  Ch.,  407. 


it^' 


22 


AMERICAN  CRIMINAL  REPORTS. 


"  Tlie  reason  of  the  rule  protects  the  client  from  a  disclosure  by  his  attor- 
ney, not  only  of  what  he  has  communicated  to  his  attorney  orally  or  in  writ- 
ing, but  of  any  information  derived  by  the  attorney  from  Leiii}?  employed 
as  siK-h,—  any  information  which  he  has  derived  from  his  client,  whether 
by  words,  signs,  or  acts;  and  to  restrict  the  privilege  to  oral  or  written 
comnmniciitions  wouli'  -lake  the  rule  infinitely  narrower  than  the  reaeoJi 
upon  which  it  is  based." 

in  Hollenbuck  v.  Todd,  119  111.,  543.  it 's  held  that  an  attorney  employed  to 
draw  up  an  ausijjumont  attacked  by  creditors  as  fraudulent  nijiy  not  be 
asked  what  his  client  said  at  the  time  with  reference  to  his  intent  or  pur- 
pose in  making  the  assignment. 

But  communications  made  to  an  attorney  by  his  client  before  the  com- 
mission of  a  crime,  for  the  jiurpose  of  being  guided  or  helped  in  the  com- 
mission of  it,  are  not  privileged.  Tlui  Queen  v.  Cox  and  liailton,  5  Am.  Cr. 
R..  140. 

On  the  trial  of  one  charged  with  murder,  testimony  of  the  defendant 
that  he  had  consulted  counsel  and  was  advised  he  had  a  legal  right  to 
maintain  pos3e^sion  of  the  land,  in  a  dispute  about  which  tike  alleged  mur- 
der took  place,  is  not  admissible.     Wcdon  v.  The  Com.,  G  Am.  Cr.  11.,  140. 


I    I 


State  v.  Deitz. 

(07  la.,  220.) 

AccosiPLicE  —  Sttjjlciencii  of  evidence. 

Conviction  — CouROBORATiox  of  accomplice.— The  sufTiciency  of  evi- 
dence corroborating  an  accomplice  and  tending  to  connect  the  ac- 
cused with  tile  commission  of  the  crime  charged  is  in  the  province  of 
the  jury. 

Appeal  from  Benton  District  Court. 

The  defendant  was  indicted  and  convicted  of  the  crime  of 
murder,  and  sentenced  to  bo  imprisoned  in  the  penitentiary 
for  twenty  years,  and  lie  appeals. 

John  Jflfc/ieU,  for  appellant. 

A.  J.  Baler,  attorney-general,  for  the  stato. 

Seevkhs,  J.  W.  B.  Ilower  was  murdered  by  means  of  poison 
administered  to  him  by  his  wife.  The  defendant  was  indicted 
and  convicted  on  the  theory  that  he  was  an  accessory  before 
the  fact.  Anna  L.  Ilower,  the  widow  of  the  deceased,  had 
been  convicted  prior  to  the  trial  in  this  case,  and  she  testilled 


to 


STATE  V.  DEITZ. 


23 


as  a  witness  for  the  state,  on  the  trial  of  the  defendant,  that 
he  procured  the  poison,  and  advised  her  to  give  it  to  the  de- 
ceased; and  the  only  question  we  are  required  to  determine  is 
whether  slie  was  sulKciently  corroborated  by  evidence  which 
tends  to  connect  tlie  defendant  with  the  commission  of  the 
offense.     Code,  j^  45.jI). 

The  ])oison  was  administered  and  the  deatli  occurred  in 
Marion,  Linn  county,  in  this  state.  The  defendant  at  that 
time  resided  in  Illinois,  whore  Mrs.  Ilower  and  her  husband 
resided  a  sliort  time  before  the}'  became  residents  of  this  state. 
The  evidence  tended  to  show  that  Mrs.  llower  and  the  defend- 
ant were  criminally  intimate  in  the  state  of  Illinois.  The  de- 
ceased suspected  such  intimacy,  and  the  evidence  tends  to  show 
the  defendant  had  knowledge  of  sucli  fact.  The  deceased 
and  his  wife  left  Illinois  on  or  about  the  Gth  day  of  July,  and 
she  had  an  interview  witli  the  defendant  on  that  day;  and,  as 
she  testified,  the  plan  was  then  agreed  upon,  and  the  poison 
procured.  That  such  an  interview  took  place  is  a  conceded 
fact.  The  poison  was  administered  on  the  9th  day  of  Jul}', 
and  on  the  l:^th  Mrs.  llower  telegraphed  the  defendant  at 
Lanark,  Illinois,  as  follows: 

"  Still  living.     Ko  better.    Come  at  once. 

"  William  Lawrknce." 

Unless  there  had  been  some  prior  understanding  between 
the  defendant  and  ^Frs.  llower,  it  is  preposterous  to  suppose 
she  would  have  signed  the  name  she  did  to  the  telegram.  On 
the  same  day  the  telegram  was  sent  the  defendant  arrived  at 
Clarion,  and  had  an  interview  with  Mrs.  llower,  and  they 
went  to  Cedar  liapids,  stayed  all  night  at  a  hotel,  and  occupied 
the  same  bed-room.  AVhether  the  defendant  came  in  response 
to  the  telegram  does  not  appear.  Mrs.  llower  testilied  that 
she  wrote  a  letter  to  the  defendant  on  Tuesday,  and  the  tele- 
gram was  sent  on  the  following  Thursday.  But  whether  the 
defendant  came  to  Marion  in  response  to  the  Iptter  does  not 
apjiear.  The  jury,  however,  would  be  warranted  in  finding 
that  a  sufficient  time  had  elapsed  to  have  enabled  the  defend- 
ant to  have  reached  Marion  after  the  receipt  of  the  letter,  if 
he  received  it  in  due  course  of  mail. 

If  there  is  evidence  which  corroborates  the  accomplice,  and 
tends  to  connect  the  defendant  with  the  commission  of  the 


u 


AMERICAN  CRIMINAL  REPORTS. 


,i 


offense,  its  sufficiency  is  for  the  jury  to  determine.  The  crim- 
inal relations  between  these  parties  in  Illinois;  the  presence 
of  the  defendant  in  Marion,  either  on  his  own  motion  or  be- 
cause Mrs.  Ilower  requested  it;  the  going  to  Cedar  Rapids, 
and  what  took  place  there,—  tend  to  corroborate  the  evidence 
of  the  accomplice,  and  connect  the  defendant  with  the  com- 
mission of  the  offense.  The  poison  was  administered  and  the 
telegram  was  sent  by  Mrs.  llower.  It  clearly  implies  that 
the  killing  of  the  deceased  had  been  discussed,  and  the  manner 
of  communication  arranged.  The  presence  of  the  defendant 
at  Marion  is  entitled  to  great  weight,  and  the  only  explanation 
given  by  counsel  for  the  defendant  is  that  the  latter  came  for 
the  purpose  which  was,  in  all  probability,  accomplished  at 
Cedar  Rajjids.  It  was,  however,  for  the  jury  to  say  whether 
this  was  his  only  purpose. 

Our  conclusion,  after  a  careful  consideration  of  the  whole 
record,  is  that  the  judgment  must  be  affirmed. 


P  I  i 


Note.— The  rule  as  to  the  corroborative  evidence  of  an  accomplice 
merely  recjuires  such  confirmation  of  the  particulars  of  his  story  is  con- 
vinces the  jury  of  its  truth.    State  c.  Dana,  59  Vt.,  614. 

His  uncorroborated  testimony  may  support  a  conviction.  Id.  S(!e,  also, 
State  V.  Miller,  97  N.  C,  484. 

When  the  testimony  of  an  accomplice  is  corroborated  as  to  important 
facts  connecting  the  defendant  with  the  offense,  evidence  is  admissible  cor- 
roborating his  testimony  as  to  minor  facts  not  connecting  the  defendant 
with  the  offense.  State  v,  Maney,  post,  25.  But  see  Robinson  v.  State,  16 
Lea  (Tenn.),  146. 

A  person  who  conveys  into  the  jail  an  instrument  to  facilitate  the  escape 
of  a  prisoner,  at  his  request,  is  not  an  accomi>lice  within  the  rule  that  a  con- 
viction cannot  be  had  on  the  uncorroborated  testimony  of  an  accomplice. 
Ash  V.  Slate,  81  Ala.,  76. 

The  rule  with  regard  to  the  uncorroborated  testimony  of  an  accomplice 
does  not  apply  to  misdemeanors.    Askea  v.  Stale,  75  Ga.,  350. 

In  misdemeanors  all  are  principals.  In  People  v.  Ogh,  104  N.  Y.,  591,  the 
counsel  for  defendant  asked  the  court  to  charge  the  jury,  in  relation  to  the 
acts  necessary  for  the  corroboration  of  an  accomplice,  •'  that  they  must  be 
inconsistent  with  the  innocence  of  the  defendant,  and  which  exclude  every 
hypothesis  hut  that  of  guilt."  The  court  refused,  and  counsel  excepted. 
"  In  this  the  court  was  clearly  right.  There  is  nut  and  never  was  any  such 
rule  as  to  corroboration.  Tlie  whole  law  of  evidence  will  be  searched  in 
vain  for  it.  The  authorities  cited  by  prisoner's  counsel  maintain  no  such 
rule.  The  rule  is  stated  in  one  of  them  (People  v.  Plath,  100  N.  Y.,  593;  3 
N.  E.  Rep.,  790),  and  is  wholly  different  from  the  request  herein  made.  It 
only  requires  a  corroboration  as  to  some  material  fact  which  goes  to  prove 


STATE  V.  MANEY. 


25 


the  prisoner  wjis  connected  with  the  crime.  Another  answer  is  that  the 
witnesses  in  regard  to  whom  the  request  was  made  were  not  accomplices 
in  any  sense  of  the  word.  Neither  was  even  charged  with  any  crime  what- 
ever. The  most  that  could  be  alleged  was  that  one  of  them,  after  the  crime 
was  committed,  had  the  knife  placed  in  his  hand,  and  he  threw  it  under  a 
chair  in  the  ball-room,  to  which  he  immediately  returned,  after  seeing  the 
prisoner  plunge  it  in  the  deceased.  There  is  no  evidence  whatever  that 
either  had  the  least  thought  that  the  murder  was  to  be  committed,  or  in 
any  way  aided  or  abetted  in  its  commission.  Even  if  the  rule  as  to  the 
evidence  of  an  accomplice  had  been  erroneously  stated  by  the  court,  it  was, 
therefore,  wholly  immaterial  in  this  case. 

"  The  court  was  also  asked  to  charge  the  jury  that  they  would  be  justified 
in  requiring  every  fact  sworn  to  by  the  witnesses  Rogers  and  Hopper  to  be 
corroborated  to  its  satisfaction,  and,  if  not  so  corroborated,  to  reject  such 
fact  as  not  proved.  The  court  left  the  question  of  the  credibility  of  the 
witnesses,  under  proper  instructions,  to  the  jury.  The  charge  was  an 
eminently  fair  one,  and  all  the  legal  rights  of  tlie  prisoner  were  therein 
carefully  and  fully  guarded." 


State  v.  Manet. 

(54  Conn.,  178.) 

Accomplice:  Corroboration  of. 

Evidence  — Accomplice  — Corroboration.— In  a  trial  under  an  in- 
dictment the  evidence  of  an  accomplice  may  be  corroborated,  as  to 
any  material  fact,  even  though  that  fact  does  not  necessarily  connect 
the  prisoner  with  the  otfense. 

Instructions  —  Credibility  op  accomplice.— Where  the  court,  in 
charging  the  jury,  instructed  them  tlmt  they  have  the  right  to  return 
a  verdict  of  guilty  upon  the  naked  testimony  of  an  accomplice,  but 
ought  never  to  do  so  unless  such  evidence  is  so  clear,  strong  and  con- 
vincing as  to  remove  every  reasonable  doubt  of  the  accused's  guilt, 
such  instruction  is  to  be  taken  in  connection  with  a  caution  previ- 
ously given,  tiiat  an  accomplice's  evidence  is  to  be  received  with  great 
caution,  and  that  it  is  generally  unsafe  to  convict  upon  his  uncor- 
roborated testimony ;  and  the  verdict  will  not  be  reversed,  on  appeal, 
on  tlie  ground  that  the  court,  in  effect,  directed  the  jury  to  give  the 
same  credence  to  an  accomplice's  evidence  as  to  that  of  any  other 
person. 


Indictment  for  arson  before  Andrews,  J.,  in  the  superior 
court,  Now  Haven  county.  Verdict  of  guilty.  Defendant 
appeals. 


HiPiilil 


26 


AMERICAN  CRIMINAL  REPORTS. 


(■;■ 

Hi 


u 


W.  a  Cam  and  IF.  II.  EUj  (with  whom  was  E.  A.  Merri- 
man\  for  appellant. 
T.  E.  UouUttle,  state's  attorney,  for  the  state. 

Caki'kntkij,  J.  Tlie  prisoner  was  char<?ed  with  arson.  The 
principal  witness  against  him  was  Matthew  Frawle}^  wlio 
testified  that  he  hunied  the  barn,  having  been  hired  to  do  so 
by  the  prisoner;  that  he  spent  the  greater  |  art  of  the  day 
at  his  house;  that  in  the  evening  he  took  him  into  his  cellar, 
proposed  to  him  that  he  burn  the  barn,  and  furnished  him 
with  some  whisky,  and  with  a  bottle  luirtly  tilled  with  kero' 
sene  oil ;  that  he  took  the  oil  from  a  barrel  nearly  empty,  so 
that  he  hud  to  tip  the  barrel,  and  then  could  not  1111  the  bot- 
tle; that  he  lired  the  building  without  using  the  oil,  and 
subsequently  threw  it  away,  describing  the  place,  lie  also  de- 
scribed the  cellar  minutely,  and,  as  it  appears  by  the  testimony 
of  other  witnesses,  correctly.  The  bottle  was  found  by  an  otKcer 
in  the  place  pointed  out  by  the  witness,  and  was  as  described  by 
him.  It  was  produced  in  court,  and  identified  by  him.  The  pro- 
duction of  the  bottle  in  court,  and  its  identification  by  the 
witness,  with  the  testimony  as  to  the  finding  of  it,  and  as  to 
its  condition,  were  objected  to,  but  admitted.  The  first  ques- 
tion in  the  case  is  whether  they  were  properly  admitted. 

The  rule  is  that  an  accomplice  ought  to  be  corroborated  as 
to  some  fact  tending  to  connect  the  prisoner  with  the  offense. 
The  question  now  raised,  in  one  aspect  of  it  at  least,  is  whether 
it  is  error  to  allow  the  attorney  for  the  state  to  corroborate 
his  evidence  as  to  a  fact  which  is  in  issue,  but  which  does  not 
inculpate  the  prisoner.  The  credibility  of  an  accomplice,  in 
respect  to  all  his  testimony,  is  for  the  invy.  They  nuiy  re- 
quire corroboration  in  respect  to  that  part  of  it  in  which  he 
;  tates  his  own  connection  with  the  crime.  Manifestly,  if  the 
defense  had  questioned  that,  the  evidence  objected  to  would 
have  been  admissible  for  that  purpose.  But  the  credibility  of 
such  a  witness  is  for  the  jury  as  to  all  that  he  says.  Hence 
any  fact  or  circumstance  which  tends  to  corroborate  in  a 
slight  degree  any  part  of  his  testimony  is  admissible.  It  was 
so  held  in  State  v.  Wolcott,  21  Conn.,  272.  In  that  case  the  ac- 
conj|  lice  detailed  two  conversations  which  ho  had  with  the 
prise  lers,  or  one  of  them,  in  which  thev  related  to  Jiim  con- 


STATE  V.  MANEY. 


27 


versatlons  which  they  had  had  with  third  parties.  The  third 
parlies  were  admitted  to  testify  that  they  in  fact  had  such 
conversations,  although  there  was  nothing  in  either  conver- 
sation in  itself  which  tended  to  criminate  the  prisoners.  The 
court,  by  Church,  C.  J.,  say  they  "  showed  a  privity  and  con- 
nection and  a  conspiracy  between  Dickerman  and  the  pris- 
oners," and  that  Dickerman  "  was  their  confidant,  to  whom 
they  imparted  their  plans  and  their  movements,  as  he  had  tes- 
tified." Still  all  the  inculpating  testimony  came  from  the  ac- 
complice; so  that  the  case  is  an  authority  for  holding  that  he 
may  bo  corroborated  as  to  any  material  fact  in  issue,  although 
that  fact  does  not  connect  the  prisoner  with  the  offense.  In 
that  case,  as  in  this,  there  was  other  corroborating  evidence 
which  did  inculpate  the  prisoners.  In  that  case  it  was  not  held, 
and  we  do  not  hold  in  this,  that  corroboration  as  to  facts  which 
do  not  inculpate  the  prisoner  will  be  sufficient,  but  simply  that 
evidence  which  corroborates  as  to  anv  fact  in  issue  is  admis- 
siblefor  what  it  is  worth.  Bishop  on  Criminal  Procedure,  sec- 
tion 1170,  says:  "  Xot  inconsistently  with  these  views  it  is  per- 
missible also  to  submit  to  the  consideration  of  the  jury  evidence 
tending  to  show  the  accomplice's  probable  credibility  in  his 
narration,  though  coming  short  of  the  required  corroboration." 
But  we  cannot  say  that  the  evidence  objected  to  in  this  case 
has  no  tendency  to  connect  the  prisoner  with  the  crime.  The 
witness  was  corroborated  as  to  the  cellar,  its  condition  and 
things  in  it;  particularly  as  to  the  bottles  and  the  barrel  of 
kerosene  oil.  The  fact  that  the  bottle  of  oil  was  found  in  the 
place  he  pointed  out  shows  that  he  had  it,  as  he  said  he  liad; 
and  tiiat  fact,  in  connection  with  the  fact  that  there  was  on 
that  day  an  empty  barrel,  from  which  a  small  quantity  of  oil 
could  bo  taken  by  tipping  it,  and  that  there  was  also  in  the 
cellar  empty  bottles  of  similar  size  and  shape,  renders  it  prob- 
able that  he  got  the  oil  at  the  time  and  place  named.  The  fact 
being  established  that  he  had  the  bottle  of  oil,  and  that  he  got 
it  in  the  prisoner's  cellar,  the  inquiry  is  a  pertinent  one,  of 
whom  did  he  receive  it,  and  for  what  purpose?  In  answer  to 
these  questions  the  accom))lice  says  he  received  it  of  the  pris- 
oner, and  for  the  purpose  of  firing  this  barn.  And  here  he  is 
corroborated  by  the  prisoner's  declarations  made  to  the  de- 
tectives. The  testimony  of  the  detectives,  however,  goes  further 


aa 


AMERICAN  CRIMINAL  REPORTS. 


1 

1 

■  1 

ilk 

than  that;  and,  if  believed  by  the  jury,  fastens  the  crime  upon 

the  prisoner. 

The  question  is  not,  therefore,  whether  this  evidence  is  ad- 
missible as  supplying  the  corroboration  which  the  evidence  of 
an  accomplice  needs  at  a  point  which  connects  the  prisoner 
with  the  crime,  1.  -  corroborating  evidence  of  that  char- 

acter had  alrcacij  :  '  '^  J  -nished,  but  whether  the  testimony 
of  an  accomplice  may  be  corroborated  in  other  and  minor 
points,  wliich  do  r/>t.  taken  by  themselves,  touch  the  prisoner. 
And  tills  is  a  que&fion  ..  ^t  ar-  \  under  the  law  peculiar  to  ac- 
complices, but  under  the  genera)  n\\  .o  of  evidence  with  refer- 
ence to  witnesses  who  from  any  cause  stand  before  the  jury 
with  their  credibility  seriously  impaired.  Thus,  suppose  doubt 
were  thrown  upon  the  whole  story  of  the  accomplice,  and  it 
was  claimed  by  the  defense  that  he  did  not  set  the  barn  on 
fire,  would  it  not,  on  general  principles,  be  admissible  to  prove, 
by  a  person  who  saw  him  do  it,  that  his  story  was  true?  And 
yet  this  would  not  connect  the  ])risoner  with  the  crime. 

The  remaining  question  arises  upon  the  charge  of  the  court 
to  the  jury.  The  learned  counsel  for  the  prisoner  complain 
that  the  charge  of  the  court  puts  the  testimony  of  an  accom- 
plice "on  a  par  with  other  kinds;  and  says  merely,  if  you  are 
convinced  beyond  a  reasonable  doubt,  by  the  testimony  of  an 
accomplice,  of  the  defendant's  guilt,  that  is  sufficient;  stating 
exactly  the  same  rule  that  applies  to  all  kinds  of  evidence,  and 
containing  no  caution,  no  advice,  and  showing  no  distinction 
between  testimony  of  an  accomplice  and  other  testimony."  If 
that  is  a  right  view  of  the  charge,  there  is  doubtless  foundation 
for  the  complaint.    But  we  do  not  so  interpret  the  charge. 

The  court  first  told  the  jury  that  "Frawley  was  the  active 
agent  in  this  crime,  and  his  story  comes  to  you  under  such  cir- 
cumstances as  to  call  for  the  most  carefu'  scrutiny.  In  the 
argument  a  good  deal  of  stress  has  been  laid  ui)on  what  is 
claimed  to  be  a  rule  of  law,— that  the  story  of  an  accomplice 
ought  to  be  received  with  great  care;  and  that  undoubtedly  is 
the  rule.  Our  supreme  court,  quite  a  number  of  years  a<jo, 
laid  down  this  rule  in  language  better  that  I  can  give  it  my- 
self, and,  in  order  that  you  may  have  it  exactly,  I  will  read  it 
to  you."  The  court  then  proceeded  to  read  the  charge  of  the 
superior  court  to  the  jury  in  the  case  of  Slate  v.  Wolcoit,  21 


STATE  V.  MANEY. 


29 


Conn.,  272,  and  from  the  opinion  of  the  supreme  court  sustain- 
ing that  charge.  Of  course  the  jury  must  have  understood 
that  the  court  adopted  the  portions  read  from  that  case  as  a 
part  of  his  instruction  to  them. 

In  that  charge,  consequently  in  this,  we  find  these  words: 

"An  accomplice  is  an  admissible  witness;  but,  as  he  comes 
before  the  court  under  suspicious  circumstances,  his  testimony 
ought  to  be  received  with  great  caution.  As  a  general  rule, 
it  will  be  unsafe  to  convict  upon  the  testimony  of  an  accom- 
plice alone,  uncorroborated  by  other  testimony.  It  ought  to 
be  corroborated  in  material  facts  connecting  the  prisoners, 
and  each  of  them,  with  the  crime;  but  the  degree  of  credit 
to  be  given  to  the  testimony  of  an  accomplice,  and  the  amount 
of  corroboration  necessary  to  render  it  satisfactory,  are  mat- 
ters to  be  considered  and  determined  by  the  jury." 

That  charge  was  sustained  by  this  court  in  the  former  case, 
and  we  must  regard  it  as  correct  in  this. 

Immediately  after  reading  from  the  report  of  that  case  the 
court  said: 

"Now,  if  I  should  attempt  to  make  a  rule  out  of  this  lan- 
guage of  the  supreme  court,  it  would  be  something  like  this: 
that  the  jury  may  hear  the  testimony  of  an  accomplice,  and 
that  upon  the  naked  testimony  of  an  accomplice  the}'  have  the 
right  to  find  a  verdict  of  guilty,  but  that  they  ought  never  to 
do  so  unless  they  find  such  evidence  to  be  so  clear,  strong  and 
convincing  that  it  removes  from  their  minds  ever}'  reasonable 
doubt  of  the  guilt  of  the  accused," 

This  is  the  portion  of  the  charge  which  is  complained  of.  If 
this  was  the  whole  charge,  or  if  we  were  required  to  consider 
the  rule  thus  formulated  apart  from  what  precedes  and  what 
follows  it,  there  would  be  difficulty  in  sustaining  it.  But  we 
cannot  presume  that  the  judge  intended  to  withdraw  from  the 
jury  the  caution  he  had  already  given  them.  They  must  have 
understood  that  the  scales  in  which  the  evidence  of  an  accom- 
plice is  to  bo  weighed  are  different  from  those  in  which  other 
evidence  is  weighed.  It  is  true,  the  testimony  of  an  accomplice 
may  be  so  strong  and  convincing  as  to  justify  a  verdict  of 
guilty  without  corroboration;  and  that  was  what  the  jury  were 
told.  They  were  also  instructed  to  exercise  caution  in  weigh- 
ing his  testimony.    That  negatives  the  claim  that  his  testi- 


It 


I  ^ 


gQ  AMERICAN  CRIMINAL  REPORTS. 

monv  was  placed  upon  the  same  footing  as  that  of  other 
witnosses.  AVe  tliink,  therefore,  that  the  fair  import  of  the 
whole  charge  is  that  if  the  jury,  after  making  clue  allowance 
for  the  suspicious  circumstances  under  wmcn  me  testimony  is 
given,  are  fully  convinced  of  the  prisoner's  guilt,  they  may  re- 
turn a  verdict  of  guilty. 

Again,  the  case  was  not  submitted  to  the  jury  upon  the 
nake'il  testimony  of  the  accomplice;  for  the  court  had  pre- 
viously told  the  jury  that  his  testimony  should  be  received 
Avith  caution,  and' that  it  ought  to  be  corroborated  in  material 
facts  connecting  the  prisoner  with  the  crime;  and,  immedi- 
ately after  laying  down  the  rule  just  alluded  to,  the  judge  said 
to  tiie  jury :  "  Now,  taking  that  to  be  the  rule,  the  state  say 
there  is  no  occasion  for  its  application  in  this  case,  because  they 
say  that  Frawley  is  corroborated."  He  then  called  attention 
to  the  corroborating  evidence,  which  we  can  see  was  amply 
sufficient  to  justify  the  jury  in  finding  that  the  witness  was 
corroborated  as  to  material  facts.  Now,  we  must  presume  that 
the  jurors  did  their  duty,—  that  they  considered  the  case  as  it 
was  presented  to  them;  that  they  required  the  accomplice  to 
be  corroborated ;  and  that  they  considered  the  corroborating 
evidence  and  regarded  it  as  sufficient.  To  suppose  otherwise, 
and  assume  that  they  founded  their  verdict  upon  the  naked 
uncorroborated  testimony  of  the  accom]ilice,  iin|)utes  to  them 
a  culpable  neglect  of  duty  and  a  manifest  violation  of  their 
oaths. 

We  find  no  error  in  the  judgment. 

(The  other  judges  concurred.) 

Note. —  C'orrohoration  of  accomplice  —  Wlto  is  an  accomplice. —  On  the 
trial  of  an  indictment  for  forgery  there  was  evidence,  in  .iddition  to  that 
given  by  the  accomplice,  that  the  accused  had  once  before  been  convicted 
of  the  same  crime ;  that  the  accomplice  and  the  accused  had  been  friends 
and  associates;  tliat  about  the  time  the  forgery  was  committed  the  accused 
was  in  the  city  wnere  tlie  crime  was  committed  under  an  assumed  name; 
and  that  upon  his  arrest  his  conduct  and  conversation  wei'e  such  as  to  show 
that  he  knew  of  the  forgery.  Held,  that  there  was  evidence  to  corroborate 
the  accomplice  within  Code  of  Criminal  Procedure  of  New  York,  section  899, 
providing  that  "  a  conviction  cannot  be  had  upon  the  testimony  of  an  ac- 
complice unless  he  be  corroborated  by  such  other  evidence  as  tends  to  con- 
nect the  defendant  with  the  commission  of  the  crime."  People  v.  Elliott, 
106  N.  Y.,  288. 


STATE  V.  MANEY. 


81 


It  is  discretionary  witli  the  trial  court  to  direct  an  acquittal  on  the  uncor- 
roborated testimony  of  an  accomplice.  Black  v.  State,  59  Wi3.,  471;  Olive 
V.  State,  11  Nol).,  1 ;  ImjaUs  v.  State,  48  Wis.,  047. 

It  is  not  necessary  tliat  the  accomplice's  testimony  should  be  corroborated 
as  to  every  material  fact.  State  v.  Allen,  57  la.,  431;  State  v.  Ilcnnenaif,  55 
la.,  299.  A  corroboration  as  to  some  material  fact  which  goes  to  prove  that 
tlie  prisoner  was  connected  with  the  crime  is  suflftcient.  People  v.  Oijle,  104 
N.  Y.,  511:  People  V.  Kunz,  73  Cal.,  313;  People  v.  Jaehne,  103  N.  Y„  183: 
People  i\  Evei-havdt ,  id.,  591;  State  v,  Latdor,  28  Minn.,  210.  It  is  not 
enough  that  the  accomplice  be  corroborated  in  general.  Tiiere  must  be  evi- 
dence tending  to  connect  the  defendant  with  the  commission  of  the  crime. 
But  the  accomplice  may  be  corroborated  as  to  any  material  fact,  even 
tiiough  tliat  fact  does  not  necessarily  connect  the  prisoner  witii  the  offense, 
for  tlie  purpose  of  showing  his  credibility.    State  v,  Maney,  54  Conn.,  178. 

Wlictlier  a  witness  is  an  accomplice  or  not  is  for  the  jury  {State  v.  Laic- 
lor,  28  Minn.,  210):  but,  when  a  witness  is  undoubtedly  an  accomplice,  it  is 
error  for  the  court  not  to  instruct  the  jury  on  the  subject  of  accomi)lice  tes- 
timony.    Stone  V.  State,  2  S.  W.  Rep.  (Tex.),  585. 

A  boy  thirteen  years  old,  wlio,  under  coercion,  participates  in  the  commis- 
sion of  a  felony,  is  not  an  accomplice  (A'oji/e  v.  Miller,  00  Cal..  408);  nor  the 
wife  of  one  of  several  conspirators  who  overhe.nrs  them  discussing  plans 
for  conmiitting  a  crime.  State  r.  Roberts,  15  Oreg.,  187.  A  detective  who 
joins  a  criminal  organization  for  the  purpose  of  exposing  it  is  not  an  accom- 
plice.    People  V.  Pollingcr,  71  Cal.,  17. 

In  Ash  V.  State,  81  Ala.,  70,  the  defendant  was  indicted  for  conveying 
into  the  county  jail  an  instrument  described  as  a  horse-shoe  rasp,  with  the 
intent  to  facilitate  the  escape  of  one  Jasper  Towns,  a  prisoner  lawfully  con- 
lined  therein  under  a  charge  of  burglary.  Code  1870,  ^  4130.  The  evidence 
shows  that  Towns  not  only  consented  to  the  act,  but  voluntarily  procured 
it  to  be  done.  Upon  the  trial  of  this  case  Towns  was  introduced  as  a  witness 
against  the  defendant,  and  the  question  was  raised  whether  he  was  such 
an  accomplice  in  the  crime  charged  against  the  defendant  as  that  a  convic- 
tion could  not  be  had  on  his  uncorroborated  testimony.  Code  1870,  g  4895, 
Somerville,  J.,  speaUing  for  the  court,  says:  "  It  is  our  opinion  that  Towns 
was  not  an  accomplice  in  the  crime  charged  in  the  indictment,  which  is 
aiding  Ids  {Towns'')  escape.  The  statute  strikes  at  the  offense  of  one  man 
aiding  the  escape  of  another,  not  that  of  himself,  and  this  is  made  a  felony. 
The  test  is  whetlier  the  witness  could  have  been  indicted  and  convicted  of 
the  offense  charged  either  as  principal  or  accessory.  Bass  v.  State,  37  Ala., 
469.  It  is  clear  that  he  could  not,  for  there  is  no  law  which  makes  it  a 
felony  for  a  prisoner  to  effect  his  own  escape.  In  Com,  v.  Wood,  11  Gray, 
85,  it  was  decided  that  a  woman  who  procured  a  defendant  to  produce  an 
abortion  on  her  was  not  an  accomplice  of  the  defendant  in  the  crime.  This 
ruling  was  re-aflfirmed  in  Com,  v,  Boynton,  116  Mass.,  343.  In  the  latter 
case  it  is  said:  '  She  could  not  have  been  indicted  as  a  participator  in  the 
offense,  and  was  not  an  accomplice.'  "    1  Whart.  Grim.  Law  (9th  ed.),  §  594. 


* 


82 


AMERICAN  CRIMINAL  REPORTS. 


Powell  v.  Commonwealth.' 

(114  Pa.,  205.) 

Adulteration  :  Comiilntionul  law  — Legislative  powers  —  PoVcc  jwwers. 

1.  Constitutional  law  — What  justifies  the  judiciary  in  declarino 

AN  ACT  VOID,— Nothini^  but  a  cU'iw  violiitioii  of  tlie  constitution  — a 
clear  usurpation  of  [lower  juoliibited  —  will  justify  the  juilicial  depart- 
ment in  pronouncing  an  act  of  tiie  legislative  department  unconstitu- 
tional and  void. 

2.  Legislative  power  — Extent  —  Limitations,— In  creating  a  legisla- 

tive department  and  conferring  upon  it  the  legislative  power,  the 
people  must  be  understood  to  have  conferred  the  full  and  complete 
authority,  as  it  rests  in  and  may  be  exercised  bj-  the  sovereign  power 
of  anj'  state,  subject  only  to  such  restrictions  as  they  have  seen  fit  to 
impose,  and  to  the  limitations  which  are  contained  in  the  constitution 
of  the  United  States. 

3.  Police  powers  —  Extent.—  The  police  powers  of  a  state  extend  to  the 

protection  of  the  lives,  limbs,  health,  comfort  and  quiet  of  all  per- 
sons, and  the  protection  of  all  property,  within  the  state.  By  tho  ex- 
ercise of  police  powers,  persons  and  proi)erty  are  subjected  to  all  kinds 
of  restraints  and  burdens  in  order  to  secure  the  general  comfort, 
health  and  prosperity  of  the  state. 

4.  Adulteration  of  dairy  products.— The  Pennsylvania  act  of  May  21, 

1883  (P.  L.,  22).  entitled  "  An  act  for  the  protection  of  the  public  health, 
and  to  prevent  adulteration  of  dairy  products,  and  fr.-vud  in  the  sale 
thereof,"  is  a  valid  execution  of  the  police  power,  and  not  unconstitu- 
tional.2 


Error  to  Quarter  Sessions,  Dauphin  County. 

D.  T.  Watson.,  ^Yche  <&  Gilhert  and  F.  G.  Breioster,  for 
plaintiff  in  error. 

Wayne  Mac  Vengh,  S.  J.  M.  McCarrell  and  IlaU  d:  Jordan, 
for  defendant  in  error. 

Indictment  by  the  commonwealth  of  Pennsylvania  against 
W.  L.  Powell  for  violation  of  the  act  of  Ikfay  21,  1885.  De- 
fendant was  convicted,  and,  on  the  motion  for  a  new  trial  and 
in  arrest  of  judgment,  the  court,  Simpton,  P.  J.,  on  December 
5,  1885,  filed  the  following  opinion  overruling  the  same,  and 
giving  the  commonwealth  liberty  to  move  for  judgment  upon 
the  verdict.    (Fourth  assignment  of  error.) 

» Affirmed  by  United  States  supreme  court,  127  U.  S.,  078. 
'See  note. 


POWELL  V.  COMMONWEALTH. 


33 


The  (leferulant,  who  is  engaged  in  the  grocer}'  and  p.ovision 
business  in  the  city  of.IIarrisburg,  was  tried  in  the  court  of 
quarter  sessions  of  Dauphin  count}'  on  an  indictment  based 
upon  the  act  of  May  21,  1885,  the  first  section  of  wliich  is  as 
follows:  "No  person,  firm  or  corporate  body  shall  manufact- 
ure out  of  any  oleaginous  substance,  or  any  compound  of  the 
same  other  than  that  produced  from  unadulterated  milk,  or 
of  cream  from  the  same,  any  ailicle  designed  to  take  the  ])laco 
of  butter  or  cheese  produced  from  pure  unadulterated  milk,  or 
cream  from  the  same,  or  (of)  any  imitation  or  adulterated  but- 
ter or  cheese,  nor  sell,  or  offer  for  sale,  or  have  in  his  posses- 
sion with  intent  to  sell,  the  same  as  an  article  of  food."  The 
fourth  section  makes  it  a  criminal  misdemeanor  to  violate  the 
provisions  of  the  first  section. 

The  offense  charged  was  the  selling,  and  having  in  his  pos- 
session with  intent  to  sell,  the  article  the  manufacture  and 
sale  of  which  is  prohibited  by  the  act. 

The  following  agreement  was,  at  the  trial,  put  in  evidence 
by  the  commonwealth :  "  It  is  agreed,  for  the  purposes  of  this 
trial,  that  the  defendant  sold  to  the  prosecuting  witness  in  the 
city  of  Ilarrisburg,  July  10,  1SS5,  as  an  article  of  food,  two 
original  packages, /to  «^  the  said  packages  here  produced  in 
court,  containing  an  article  manufactured  out  of  an  oleagi- 
nous substance  and  compound  other  than  that  produced  from 
unadulterated  milk,  or  cream  from  the  same,  and  designed  to 
take  the  place  of  butter  produced  from  pure  unadulterated 
milk  or  cream ;  that  said  packages  were  sold  and  bought  as^ 
butterino,  and  not  as  butter  produced  from  pure  unadulterated 
milk  or  cream  from  the  same. 

"It  is  further  agreed  that  said  defendant  had  in  his  posses- 
sion, with  intent  to  sell  the  same  as  an  article  of  food,  one 
hundred  other  pounds  of  said  article. 

"It  is  further  agreed  that  the  packages  so  sold  to  the  prose- 
tor,  and  as  now  produced  in  court,  contain  twenty-three  pounds 
each,  aiul  that  each  package  was  then  and  is  now  marked  with 
the  words  'oleomargarine  butter'  upon  the  lid  and  side  of  the 
package  in  a  straight  line  in  Roman  letters  half  an  inch  long." 
Whereupon  the  commonwealth  rested. 

The  defendant  then  produced  an  expert  witness  and  offered 
Vol.  VII  — 3 


84 


AMERICAN  CRIMINAL  REPORTS. 


I 


to  prove  by  him  cenain  matters,  which,  on  objection  by  the 
district  attorney,  were  excluded  by  the  court. 
These  offers  will  be  quoted  at  length  hereafter  in  this 

opinion. 

The  case  was  then  submitted  to  the  jury  on  the  admission 
contained  in  the  agreement  in  evidence,  and  a  verdict  of  guilty 
was  rendered. 

Motions  were  then  made  on  behalf  of  the  defendant  for  a 
new  trial  and  in  arrest  of  judgment,  which  were  fully  and 
ably  argued  and  are  now  to  be  decided. 

The  able  counsel  for  the  defendant  contended  at  the  trial 
and  at  the  argument  of  these  motions: 

1.  That  the  act  under  which  defendant  was  indicted  and 
convicted  is  unconstitutional  jjer  so;  and 

2,  That  the  evidence  offered  and  rejected  was  relevant  to 
the  question  of  its  constitutionality  us  applied  to  the  special 
facts  of  this  case. 

"We  must  determine  whether  either  or  both  of  these  posi- 
tions can  be  maintained. 

It  results  from  the  very  nature  of  the  case  that  when  the 
question  properly  arises,  and  a  statute  is  found  by  the  courts 
to  be  unconstitutional,  they  must  declare  it  void. 

The  constitution  of  the  United  States  is  the  supreme  law  of 
the  land,  and  next  to  it,  and  higher  in  authority  than  legis- 
lative statutes,  is  the  constitution  of  the  state. 

Hence,  when  a  statute  comes  in  conllict  with  either,  it  must 
give  way,  and  the  courts  must  decide  whether  such  conflict  ex- 
ists or  not,  when  the  rights  of  parties  litigant  depend  upon 
such  decision. 

"Courts  are  organized  and  established  to  administer  the 
laws  of  the  land.  In  their  decision  the}'  are  bound  to  pre- 
serve and  protect  those  paramount  laws  which  they  are  sworn 
to  support."  I^'lint  River  Steamloat  Company  v.  Foster,  5  Ga., 
194  (48  Am.  Dec,  p.  256). 

But,  as  is  shown  by  Chief  Justice  Black  in  Sharpless  v.  The 
Mayor,  9  II.,  147,  a  statute  will  be  declared  void  by  the  court 
"only  when  it  violates  the  constitution  clearly,  palpably, 
plainly,  and  in  such  manner  as  to  leave  no  doubt  or  hesitation 
on  our  minds."    And  he  adds  that  this  is  a  rule  which  "has 


POWELL  V.  COMMONWEALTH. 


85 


the  singular  advantage  of  not  being  opposed  even  by  a  diotnui.''^ 
Again,  in  Ji^rie  tO  Northeast  Jiailroad  Company  v.  Casey^  26 
Pa.  St.,  287,  the  same  judge  says;  "The  right  of  the  judiciary 
to  declare  a  statute  void,  and  to  arrest  its  execution,  is  one 
which,  in  the  opinion  ot  all  courts,  is  coupled  with  responsi- 
bilities f?o  grave  that  it  is  never  to  bo  exercised  except  in  very 
clear  cases;  one  department  of  the  government  is  bound  to 
presume  that  another  has  acted  rightly.  The  party  who 
wishes  us  to  pronounce  a  law  unconstitutional  takes  upon  him- 
self the  burden  of  proving,  beyond  a  doubt,  that  it  is  so." 

And  in  the  opinion  of  the  court  in  Pennsylvania  luiilroad, 
Company  v.  liiblet,  66  Pa.  St.,  164,  Chief  Justice  Sharswood 
says:  "Nothing  but  a  clear  violation  of  the  constitution  —  a 
clear  usurpation  of  power  prohibited  —  will  justify  the  judi- 
cial department  in  pronouncing  an  act  of  the  legislative  de- 
partment unconstitutional  and  void."  And  the  courts  cannot 
inquire  whether  the  legislature  has  violated  the  general  prin- 
ciples of  liberty,  or  whether  its  enactments  are  unwise  or  in- 
expedient, but  only  whether  it  has  overstepped  the  limits 
prescribed  for  it  in  the  constitution. 

This  is  declared  by  Chief  Justice  Black  in  the  clearest  and 
most  forcible  language  in  tSharpless v.  T/ie  Mayor,  supra,  thus: 
"  To  me  it  is  as  plain  that  the  general  assembly  may  exercise 
all  the  ])owers  which  are  properly  legislative,  and  which  are 
not  taken  away  by  our  own  or  by  the  federal  constitution,  as 
it  is  that  tlie  people  have  all  the  rights  Avhich  are  expressly  re- 
served. We  are  urged,  however,  to  go  further  than  this,  and 
to  hold  that  a  law,  though  not  prohibited,  is  void  if  it  violates 
the  spirit  of  our  institutions,  or  impairs  an}-^  of  those  rights 
which  it  is  the  object  of  a  free  government  to  protect,  and  to 
declare  it  unconstitutional  if  it  be  wrong  and  unjust.  But  we 
cannot  do  this."  And  he  proceeds  to  show,  by  reference  to 
numerous  authorities,  that,  as  he  sa3^s,  "  the  weight  of  author- 
ity is  overwhelming"  in  support  of  the  doctrine  thus  laid 
down.  And  in  the  later  case  of  Commonwealth  v.  Maxioell,  3 
Casey,  456,  Chief  Justice  "Woodward  said:  "A  law  that  is  un- 
constitutional is  so  because  it  is  either  an  assumption  of  power 
not  legislative  in  its  nature,  or  because  it  is  inconsistent  with 
some  provision  of  the  federal  or  state  constitution." 

We  could  cite  numerous  cases  to  show  that  the  same  doc- 


msmmm 


86 


AMERICAN  CRIMINAL  REPORTS. 


trine  is  held  by  the  highest  courts  of  all  the  states,  but  we  do 
not  deem  it  necessary  so  to  do.  We  have  abundantly  shown 
that  it  is  the  doctrine  by  which  we  must  be  governed  in  decid- 
ing this  case.  We  will  endeavor,  first,  to  determine  whether 
tiie  act  is  unconstitutional  per  se,  irrespective  of  the  evidence 
offered  and  excluded. 

The  burden  of  proof  is,  as  we  have  seen,  on  the  defendant. 
We  have  carefully  considered  the  suggestions  and  arguments 
advanced  by  his  able  counsel,  intended  to  show  that  the  power 
to  enact  a  statute  such  as  the  one  in  question,  which,  as  they 
contend,  deprives  the  defendant  of  the  use  of  his  faculties,  and 
takes  from  him  a  means  of  livelihood,  is  excepted  out  of  the 
general  grant  of  the  legislative  power  contained  in  the  consti- 
tution, by  the  express  or  implied  limitations  or  proliibitions  of 
the  bill  of  rights  or  the  body  of  the  constitution  itself. 

But  assuming  for  the  present  thai  the  statute  is  in  its  nature 
legislative,  we  are  wholly  unable  to  find  any  limitation  or  pro- 
hibition which  can  be  successfully  pleaded  against  its  enactment 
or  enforcement.  For  whilst  the  bill  of  rights  does  declare 
that  "all  men  are  born  equally  free  and  independent,  and 
have  certain  inherent  and  indefeasible  rights,  among  which 
are  those  of  enjoying  life  and  liberty,  and  of  acquiring,  pos- 
sessing and  protecting  property  and  reputation,  and  of  pursu- 
ing their  own  happiness,''  this  has  never  been  construed  to  be 
a  declaration  that  these  rights  are  absolute. 

On  the  contrary,  as  is  said  by  Chief  Justice  Shaw  in  Cmti- 
inomcealth  v.  Alger,!  Gushing,  53:  "We  think  it  a  settled 
principle,  growing  out  of  the  nature  of  well-ordered  civil 
society,  that  every  holder  of  property,  however  absolute  and 
unqualified  his  title  may  be,  holds  it  under  the  implied  liabil- 
ity that  his  use  of  it  shall  not  be  injurious  to  the  equal  enjoy- 
ment of  others  having  an  equal  right  to  the  enjoyment  of 
their  property,  nor  injurious  to  the  rights  of  the  communit\'. 
All  property  is  lield  subject  to  those  general  regulations 
which  are  necessary  to  the  common  good  and  general  welfare. 
Eights  of  property,  like  all  -other  social  and  conventional 
rights,  are  subject  to  such  reasonable  limitations  in  their  en- 
joyment as  shall  prevent  them  from  being  injurious,  and  to 
such  reasonable  restraints  and  regulations  established  by  law 
as  the  legislature,  under  the  governing  and  controlling  power 


POWELL  V.  COMMONWEALTH. 


37 


vested  in  them  by  the  constitution,  may  think  necessary  and 
expedient." 

Hence,  if  the  act  in  question  be  legislative  in  its  character, 
the  limitations  which  it  prescribes  for  the  defendant  in  the  ac- 
quisition, possession  and  use  of  his  property  are  clearly  within 
the  boundary  lines  drawn  by  the  constitution,  if,  in  the  judg- 
ment of  the  legislature,  these  limitations  are  considered  neces- 
sary and  expedient  for  the  welfare  of  the  community.  And 
if  so,  then  in  so  far  as  they  do,  if  at  all,  interfere  with  the  de- 
fendant's enjoyment  of  his  property,  this  interference  results 
from  the  "  law  of  the  land." 

It  has  not  been  even  suggested  in  argument  that  the  statute 
is  in  conflict  with  any  of  the  provisions  of  the  constitution  of 
the  United  States,  and  hence  we  need  not  refer  to  that  instru- 
ment, except  to  say  that,  if  it  were  so  suggested,  we  think  the 
contrary  is  clearly  shown  by  Mr.  Justice  Miller  in  In  re  Bros- 
na/ian,  IS  t'ed.  Kep.,  02  (4  Am.  Cr.  R.  16,  and  note). 

Vi\ii  counsel  contend  that  this  enactment  is  not  properly  leg- 
islative in  its  diameter,  but  that,  under  the  guise  of  a  pre- 
tended exercise  of  tlio  police  power  of  the  state,  the  legislature 
has  made  an  unwarranted  attack  upon  private  rights  that,  as 
slated  by  the  learned  counsel  who  closed  the  argument  on  be- 
half of  the  defendant,  "in  the  form  of  government  ordained 
by  this  people,  and  under  which  we  live,  the  grunt  of  legisla- 
tive power  never  included  a  power  for  the  destruction  of  a 
harmless  industry,  whicli  is  sought  in  this  case  to  be  exerted." 

This  brings  us  to  the  fundamental  question  in  the  case, 
namely,  the  question  of  the  nature  and  the  extent  of  the  police 
power  of  the  state. 

This  power  is  a  proper  subject  for  description  rather  than 
delinition,  and  it  has  nowhere  been  more  aptly  described  than 
by  Chief  Justice  Shaw  in  Commomoealth  v.  Alger,  supra,  at 
page  85,  where  it  is  said  to  be  "  the  power  vested  in  the  legis- 
lature by  the  constitution  to  make,  ordain  and  establish  all 
manner  of  wholesome  and  reasonable  laws,  statutes  and  ordi- 
nances, either  with  penalties  or  without,  not  repugnant  to  the 
constitution,  as  they  shall  judge  to  be  for  the  good  and  wel. 
fare  of  the  commonwealth  and  of  the  people  of  the  same." 

Tills  power,  as  was  said  by  Mr.  Justice  Field  in  his  concur- 
ring opinion  in  Bartonei/er  v.  loom,  18  Wall.,  138,  extends  to 


88 


AMERICAN  CRIMINAL  REPORTS. 


v 


all  regulations  affecting  the  health,  good  order,  morals,  peace 
and  safety  of  society,  and  under  it  all  sorts  of  restrictions  and 
burdens  are  imposed,  and  when  these  are  not  in  conflict  with 
any  constitutional  prohibition  or  fundamental  principle,  they 
cannot  be  successfully  assailed  in  a  judicial  tribunal." 

We  think  the  line  between  the  valid  exercise  of  this  police 
power  and  the  invasion  of  private  rights  is  well  drawn  in  the 
opinion  of  the  court  by  Earl,  J.,  in  Jacohi  Case,  98  K  Y.,  98. 
thus:  "  Generally  it  is  for  the  legislature  to  determine  what 
laws  and  regulations  are  needed  to  protect  the  public  health  and 
secure  the  public  comfort  and  safety,  and  when  its  measures  are 
calculated,  intended,  convenient  and  appropriate  to  accomplish 
these  ends,  the  exercise  of  its  discretion  is  not  subject  to  re- 
view by  the  courts.  But  they  must  have  some,  relation  to 
these  ends.  Under  the  mere  guise  of  police  regulations,  per- 
sonal rights  and  private  property  cannot  be  arbitrarily  invaded, 
and  the  determination  of  the  legislature  is  not  linal  and  con- 
clusive. If  it  passes  an  act  ostensibly  for  the  public  health, 
and  thereby  destroys  or  takes  away  the  property  of  a  citizen 
and  interferes  with  his  personal  liberty,  then  it  is  for  the  courts 
to  scrutinize  the  act  and  see  whether  it  really  relates  to  and  is 
convenient  and  appropriate  to  promote  the  public  health.  It 
matters  not  that  the  legislature  may,  in  the  title 'o  the  act, 
or  in  its  body,  declare  that  it  is  intended  for  the  improvement  of 
the  public  health.  Such  a  declaration  does  not  conclude  the 
courts,  and  they  must  yet  determine  the  fact  declared  and  en- 
force the  supreme  law." 

To  the  same  effect  is  Commonwealth  v.  Bearse,  132  Mass., 
542,  where,  speaking  of  the  exercise  of  the  police  power,  it  is 
said:  "  The  legislature  is  largely  the  judge  of  its  own  powers 
with  reference  to  these  matters.  If  it  can  be  seen,  indeed, 
that  the  rights  of  property  are  invaded  under  the  pretense  of 
a  police  regulation,  it  would  be  our  duty  to  interfere  to  pro- 
tect them."  And  in  Pennsylvania  liailroad  Company  v.  Eih- 
let,  supra,  the  court  say :  "We  cannot  try  the  constitutionality 
of  a  legislative  act  by  tiie  motives  and  designs  of  the  law- 
makers, however  plainly  expressed.  If  the  act  itself  is  within 
the  scope  of  their  authority  it  must  stand,  and  we  are  bound 
to  make  it  stand  if  it  will  upon  any  intendment."  The  point 
of  contact  between  the  power  of  the  legislature  and  that  of 


POWELL  V.  COMMONWEALTH. 


89 


the  courts  with  respect  to  the  exercise  of  the  j)olice  power  may 
be  illustrated  by  the  decisions  relating  to  the  power  of  taxa- 
tion. This  power,  when  exercised  in  the  mode  prescribed  by 
the  constitution,  is  practically  unlimited,  but  the  courts  will 
always  determine  whether  a  so-styled  taxing  act  is  in  reality 
such,  and  if  it  be  not,  as,  for  instance,  if  the  purpose  for  which 
the  tax  is  laid  be  a  private  and  not  a  public  purpose,  the  act 
will  be  declared  unconstitutional  and  void.  This  is  the  prin- 
ciple lying  at  the  foundation  of  the  decisions  of  the  numerous 
cases  which  hold  that  taxation  in  aid  of  the  construction  of 
railroads  is  constitutional,  among  which  Sharpless  v.  The 
Ilaijor,  mpra,  is  a  leading  case.  The  taxation  is  upheld  be- 
cause the  building  of  railroads  is  deemed  a  matter  of  public  in- 
terest. And  whenever  the  courts  have  considered  that  the 
construction  of  railroads  is  not  a  public  matter,  they  have  held 
that  laws  authorizing  taxation  for  such  a  purpose  are  not  in 
reality  tax  laws,  an  instance  of  which  is  People  v.  Salem,  20 
Mich.,  452,  decided  by  Mr.  Justice  Cooley.  See  note  to  Sharp- 
less  V.  3raijor,  59  Am.  Dec,  782,  citing  a  multitude  of  cases. 
See,  also,  cases  relating  to  frontage  rule  of  valuation  of  real 
estate  for  assessment  purposes:  Washington  Avenue^  19  P.  F. 
S.,  352 ;  Seebj  v.  City  of  Pittsburgh,  1  Norris,  360 ;  Craig  v. 
City  of  Philadelphia,  8  Norris,  265 ;  City  of  Philadelphia  v. 
Rule,  12  Norris,  15. 

Another  illustration  is  furnished  by  the  cases  relating  to  the 
exercise  by  the  legislature  of  the  power  of  eminent  domain. 
The  legislature  may  condemn  or  authorize  the  condemnation 
of  private  property  for  public  use,  and  it  may,  in  the  exercise 
of  its  discretion,  determine  when  and  upon  what  property  the 
power  of  eminent  domain  may  be  exercised ;  but  its  exercise 
is  not  beyond  the  reach  of  judicial  inquiry.  Whether  or  not 
a  use  is  a  public  one  which  will  justify  the  exercise  of  the 
power  is  a  judicial  question.  Although  the  legislature  may 
declare  it  to  be  public,  that  does  not  necessarily  determine  its 
character;  it  must  in  fact  be  public,  and,  if  it  be  not  so,  no 
legislg,tive^a<  can  make  it  so.  Palairt^s  Appeal,  17  P.  F.  8., 
488. 

On  these  principles  the  court  of  appeals  of  New  York,  in 
Jacobs  Case,  svpra.  decided  the  statute  there  in  question  to  be 
unconstitutional.     It  was  entitled  "An  act  to  improve  the 


% 
pi', 


40 


AMERICAN  CRIMINAL  REPORTS. 


r 


public  health  by  prohibiting  the  manufacture  of  cigars  and 
preparations  of  tobacco  in  any  room  in  tenement  houses  in 
certain  cases,  and  regulating  the  use  of  tenement  houses  in  cer- 
tain cji'^cs."    It  prohibited  such  manufacture  in  any  tenement 
house  occupied  by  more  than  three  families  except  on  the 
first  floor  of  houses  on  which  there  is  a  store  for  the  sale  of 
cigars  and  tobacco.    The  court,  on  examining  the  nature  and 
scope  of  the  act,  say:  "It  is  plain  that  this  is  not  a  health 
law,  and  that  it  has  no  relation  whatever  to  the  public  health ; " 
and  therefore  it  is  pronounced  unconstitutional.    Had  it  been 
in  reality  a  health  law,  the  decision  would  have  been  other- 
wise.   So  in  People  v.  Marx,  1  East.  Kep.,  190  (32  App.  L.  J.,  6), 
where  the  defendant  was  indicted  for  a  sale  made  in  viola- 
tion of  the  provisions  of  an  act  entitled  "An  act  to  prevent 
deception  in  the  sale  of  dairy  products,"  the  body  of  which  is 
substantially  the  same  as  that  of  the  act  now  before  us,  the 
court  held  the  act  unconstitutional  because  they  found  that  it 
was  not  a  lona  fide  police  regulation.     They  sa}' :  "  It  appears 
to  us  quite  clear  that  the  object  and  effect  of  the  enactment 
under  consideration  was  not  to  supplement  the  existing  pro- 
visions against  fraud  and  deception  by  means  of  imitation  of 
dairy  butter,  but  to  take  a  further  and  bolder  step,  and  by 
absolutely  prohibiting  the  manufacture  and  sale  of  any  arti- 
cle which  could  be  used  as  a  substitute  for  it,  however  openly 
and  fairly  the  character  of  the  substitute  might  be  averred 
and  published,  to  drive  the  substituted  articles  from  the  mar- 
ket and  protect  those  engaged  in  the  manufacture  of  dairy 
products  against  the  competition  of  cheaper  substances  capable 
of  being  applied  to  the  same  uses  as  articles  of  food." 

"Tlie  learned  counsel  for  the  respondent  frankly  meets  this 
view,  and  claims  in  his  points,  as  he  did  orally  upon  the  argu- 
ment, that  even  if  it  were  certain  that  the  sole  object  of  The 
enactment  was  to  protect  the  dairy  industry  in  this  state 
against  the  substitution  of  a  cheaper  article  made  from  cheaper 
materials,  this  would  not  be  beyond  the  power  of  the  legisla- 
ture. This,  we  think,  is  the  real  question  presented  in  the 
case." 

And,  after  referring  to  constitutional  provisions  and  cases, 
the  court  adds:  "  Who  will  have  tiie  temeritv  to  say  that  these 
constitutional  principles  are   not  violated  by  an  enactment 


POWELL  V.  COMMONWEALTH. 


41 


:f. 


which  absolutely  prohibits  an  important  branch  of  industry 
for  the  sole  reason  that  it  competes  with  another,  and  may 
reduce  the  price  of  an  article  of  food  for  the  human  race?" 

"  Illustrations  might  be  indefinitely  multiplied  of  the  evils 
which  would  result  from  legislation  which  should  exclude  one 
class  of  citizens  from  industries,  lawful  in  other  respects,  in 
order  to  protect  another  class  against  competition.  AVe  can- 
not doubt  that  such  legislation  is  violative  of  the  letter  as  well 
as  the  spirit  of  the  constitutional  provisions  before  referred  to, 
nor  that  such  is  the  character  of  the  enactment  under  which 
the  appellant  was  convicted." 

This  decision  is  manifestly  correct  if  we  concede  that  the 
purpose  and  intent  of  the  act  were  those  thus  found  and  de- 
clared by  the  court. 

And  if  we  could  be  satisfied  that  the  object  and  intent  of  the 
act  in  question  here  were  what  the  court  of  appeals  of  J^ew 
York  declared  the  object  and  intent  of  the  act  before  that 
court  to  be,  we  would  not  hesitate  to  pronounce  it  unconstitu- 
tional and  void.  But  having  in  mind  the  axiom  that  all  the 
])resuniptions  are  in  favor  of  the  good  faith  of  a  coordinate 
department  of  the  government,  and  that  to  doubt  is  to  be  re- 
solved in  favor  of  the  validity  of  its  acts,  how  can  we  say  that 
it  is  not  the  honajide  purpose  of  this  statute,  as  expressed  in 
its  title,  to  protect  tiie  public  health,  and  to  |)revent  the  adul- 
teration of  dairy  products  and  fraud  in  their  sale?  And  the 
legislature  having,  by  passing  the  act,  declared  its  judgment 
that  the  means  used  are  necessary  to  attain  those  ends,  we 
cannot  review  this  judgment,  when  exercised  in  good  faith,  for 
the  conclusive  reason  that  it  is  clearly  within  the  jurisdiction 
of  the  legislature  to  effect  these  pur|)oses  by  appropriate 
means.  "The  fair  presumption  is  that,  in  the  honest  judg- 
ment of  the  law-making  power,  exercised  in  the  light  of  past 
legislation  on  the  same  subject,  no  less  stringent  enactment 
would  have  sufficed." 

In  accord  with  this  view  is  The  State  ti.  Aihliiigton,  12  Mo. 
App.,  214^,  affirmed  in  77  Mo.  R.,  110.  There  a  statute  sub- 
stantially identical  with  ours  was  held  to  be  a  valid  exercise  of 
the  police  power  of  the  state  vested  in  the  legislature.  This 
luling  was  based  upon  the  conclusion  that  that  statute  "  was 
obviously  ])assed  in  the  form  of  a  sweeping  proliibition,  be- 


42 


AMERICAN  CRIMINAL  REPORTS. 


cause  the  legislature  were  of  opinion,  after  two  years'  experi- 
ence with  the  previous  statute,  that  it  was  ineffectual  to  prevent 
our  people  from  being  defrauded  by  having  an  artificial  com- 
pound sold  to  them  as  real  butter.  The  design  of  the  manu- 
facturer and  seller  may  be  perfectly  honest,  but  the  person  to 
whom  they  may  sell  the  article"— the  retail  dealer— "may 
be  dishonest;  and,  therefore,  the  legislature  thought  it  best  to 
lay  the  axe  at  the  root  of  the  tree  by  prohibiting  entirely  the 
manufacture  and  sale  of  such  compound  within  the  state." 

The  opinion  delivered  in  this  case  in  the  intermediate  court 
by  Thompson,  J.,  is  worthy  of  attentive  perusal  by  reason  of 
its  strength  of  reasoning  and  fullness  of  illustration  and  cita- 
tion of  authorities.  We  must  content  ourselves  with  a  ref- 
erence to  a  few  only  of  the  multitude  of  cases,  in  addition  to 
those  already  cited,  which  illustrate  and  confirm  the  principles 
we  have  stated,  and  the  conclusion  we  have  reached.  They 
are  as  follows:  Slaughter-house  Cases,  16  Wall.,  30,  where- the 
court  hold  that  "  An  act  to  protect  the  health  of  the  city  of 
New  Orleans,"  etc.,  which  gave  to  a  corporation  the  exclusive 
ri^ht  to  have  all  stock  intended  for  slaughter  landed  at  its 
stock-yard  and  butchered  at  its  slaughter-house,  was  constitu- 
tional, because  it  was  passed  in  the  exercise  of  the  police  power 
of  the  state. 

Butchers'  Union  Company  v.  Crescent  City  Cor^pany,  111 
U.  S.,  740,  deciding  that,  although  the  act  upheld  in  the 
slaughterhouse  case  just  cited  gave  the  corporation  an  exclu- 
sive right  for  twenty-five  years  by  a  valid  contract,  yet,  in  the 
exercise  of  the  police  power,  the  privilege  of  landing  stock  and 
maintaining  a  slaughter-house  might,  within  that  period,  be 
granted  also  to  another  company.  And  see  cases  referred  to 
in  the  opinion  to  show  that  the  legislature  cannot  by  contract 
divest  itself  of  the  right  to  exercise  the  police  power  where 
deemed  necessary.  Beer  Company  v.  Massachusetts,  97  U.  S., 
25,  in  which  it  is  decided,  affirming  Bartemeyer  v.  loxoa,  18 
Wall.,  129,  that  a  state  law  prohibiting  the  manufacture  and 
sale  of  intoxicating  liquors  is  not  repugnant  to  any  clause  of 
the  constitution  of  the  United  States,  and  that  if  the  public 
safety  or  the  public  morals  require  the  discontinuance  of  any 
manufacture  or  trallic,  the  legislature,  in  the  exercise  of  the 
police  power,  may  require  its  discontinuance  even  as  against  a 


POWELL  V.  COMMONWEALTH. 


43 


J 


corporation  chartered  for  the  express  purpose  of  carrying 
it  on. 

Patterson  v.  Kentucky,  97  U.  S.,  501,  where  the  same  princi- 
ple is  applied  to  an  act  forbidding  the  sale  of  an  article  for 
which  a  patent  had  been  granted  by  the  United  States.  Stone 
V.  Mississippi,  101  U.  S.,  814,  where  the  same  principle  was 
applied  to  the  charter  of  a  lottery  company.  Barhier  v.  Con- 
nelly, 113  U.  S.,  27,  and  Soon  Iling  v.  Crowley,  id.,  703,  which 
hold  that  a  municipal  ordinance  prohibiting  washing  and  iron- 
ing in  public  laundries  and  wash-houses  within  certain  hours 
is  a  valid  exercise  of  the  police  power. 

In  the  latter  case  it  is  said :  "  The  courts  cannot  inquire  into 
the  motives  of  the  legislature  in  passing  an  act,  except  as  they 
may  be  disclosed  on  its  face  or  inferable  from  its  operation 
considered  with  reference  to  the  condition  of  the  country  and 
existing  legislation." 

Blair  v.  Forehand,  100  Mass.,  136,  holding  that  an  act  pro- 
viding that  any  person  might  kill  any  dog  not  licensed  and 
collared,  as  provided  by  the  statute,  whenever  found,  was  a 
valid  exercise  of  the  police  power.  Bertholf  v.  CReilly,  74 
K  Y.,  509  (30  Am.  R.,  323),  deciding,  after  a  full  discussion  of 
the  extent  of  the  police  power,  that  a  statute  enacting  that  the 
lessor  of  premises,  with  the  knowledge  that  they  are  to  be 
used  for  the  sale  of  intoxicating  liquors,  shall  be  liable  for 
damage  caused  by  the  act  of  one  intoxicated  by  liquor  sold 
there,  is  constitutional. 

^Yoods  V.  State,  36  Ark.,  36  (38  Am.  R.,  22),  holding  that, 
under  the  statute  forbidding  the  sale  of  ardent  spirits  by  any 
person  for  any  purpose  without  a  license,  a  druggist  cannot 
lawfully  sell  such  spirits,  even  as  medicine  upon  the  prescrip- 
tion of  a  physician, —  citing  numerous  cases  to  show  that  the 
right  of  the  legislature  in  the  exercise  of  the  police  power  of 
the  state  to  regulate  or  prohibit  the  sale  of  intoxicating  liquors 
has  been  settled  by  the  courts  beyond  controversy. 

State  V.  Mtcgler,  29  Kan.,  252  (44  Am.  R.,  643),  which  holds 
that  a  law  prohibiting  the  brewing  and  selling  of  beer  applied 
to  beer  lawfully  manufactured  before  the  law  took  effect  but 
sold  thereafter. 

Davis  V.  State,  68  Ala.,  58  (44  Am.  R.,  128),  where  it  is  de- 
cided that  a  statute  declaring;  it  unlawful  within  certain  coun- 


'V| 


44 


AMERICAN  CRIMINAL  REPORTS. 


ties  to  transport  or  move,  after  sunset  and  before  sunrise,  any 
cotton  in  the  seed  was  constitutional. 

Donnely  v.  Decker,  58  Wis.,  401  (46  Am.  R,  637),  in  which 
the  court  held  that  a  law  providing  for  the  drainage  of  lands, 
whenever  the  town  supervisors  shall  deem  it  conducive  to  pub- 
lic health,  and  for  the  payment  of  damages,  and  for  the  assess- 
ment of  the  whole  costs  on  the  lands  benefited,  was  constitu- 
tional as  an  exercise  of  the  police  power. 

Ilmvthorne  v.  People,  109  111.,  302  (50  Am.  R,  610),  deciding 
that  a  law  requiring  operators  of  butter  and  cheese  factories  on 
the  co-operative  plan  to  give  bonds  for  faithful  accounting  for 
property  received  for  manufacture  is  not  unconstitutional. 

Fry  V.  State,  63  Ind.,  552  (30  Am.  R,  23S),  holding  constitu- 
tional a  statute  regulating  the  issue  and  sale  of  tickets  by 
railroad  companies. 

State  V.  Ah  Chew,  16  ]^ev.,  50  (40  Am.  R,  488),  sustaining 
statute  prohibiting  the  sale  of  opium. 

Conimonviealth  v.  Waite,  11  Allen,  264.  This  case  decides 
that  the  legislature  have  the  right,  in  the  exercise  of  the  police 
power,  to  make  it  a  criminal  offense  to  sell  pure  milk  mixed 
with  pure  water. 

Many  of  these  cases,  which  are  but  a  tithe  of  those  pertinent 
to  the  subject,  which  might  be  cited,  are  fully  and  ably  rea- 
soned, and  are  supported  by  the  citation  of  numerous  authori- 
ties. Taken  together  they  furnish  a  very  instructive  discussion 
and  illustration  of  the  nature,  extent  and  limitation  of  the  po- 
lice power  of  the  state  and  its  relations  to  the  federal  and  stale 
constitutions. 

Thus  far  we  have  considered  the  case  as  if  the  question  were 
merely  whether  the  statute  is  or  is  not  constitutional  per  ae. 

But  the  defendani  offered  to  prove  at  the  trial  by  an  expert 
witness  "  that  he  saw  the  article  sold  to  the  prosecuting  wit- 
ness manufactured ;  that  it  was  made  from  pure  animal  fats ; 
that  the  process  of  manufacture  was  clean  and  wholesome ; 
that  the  article  contains  the  same  elements  as  dairy  butter; 
that  the  only  diflference  between  them  is  that  the  manufact- 
ured article  contains  a  smaller  proportion  of  the  fatty  sub- 
stance known  as  butterine;  that  this  butterino  exists  in  dairy 
butter  in  the  proportion  of  from  three  to  seven  per  cent.,  and 
in  the  manufactured  article  in  a  smaller  proportion,  and  was 


POWELL  V.  COMMONWEALTH. 


45 


increased  in  the  manufactured  article  by  the  introduction  of 
milk  and  cream;  that  this  having  been  done  the  article  con- 
tains all  the  elements  of  butter  produced  from  pure  unadulter- 
ated milk,  or  cream  from  the  same,  except  that  the  percentage 
of  butterine  is  slightly  smaller;  that  the  only  effect  of  butter- 
ine  is  to  give  flavor  to  the  butter,  and  it  has  nothing  to  do 
with  its  unwholesomeness;  that  the  oleaginous  substances  in  the 
manufactured  article  are  substantially  identical  with  those  pro- 
duced from  milk  or  cream;  that  the  article  sold  by  the  defend- 
ant to  the  prosecuting  witness  was  a  wholesome  and  nutritious 
article  of  food,  and  in  all  respects  as  wholesome  and  healthful 
as  butter  produced  from  pure  unadulterated  milk  or  cream." 

This  for  the  purpose  of  showing  that  "  the  statute  is  uncon- 
stitutional, and  not  a  lawful  exercise  of  the  police  power." 

Defendant  further  offered  to  prove  "  that  he  is  engaged  in  the 
grocery  and  provision  business  in  the  city  of  Ilarrisburg,  and 
that  the  article  sold  by  him  was  part  of  a  largo  and  valuable 
quantity  manufactured  prior  to  the  date  of  the  passage  of  the 
statute,  in  accoidance  with  the  laws  of  this  commonwealth 
relative  to.the  manufacture  and  sale  of  said  article,  and  so  sold 
by  him;  and  that  for  the  manufacture  of  said  article  large  in- 
vestments were  made  in  the  purchase  of  suitable  real  estate, 
the  erection  of  proper  buildings  and  the  purcliaae  of  the  neces- 
sary machinery  and  implements;  that  in  his  traffic  in  the  said 
article  the  defendant  made  large  profits,  and  that  if  the  said  de- 
fendant should  be  prevented  from  trafficking  in  said  article  the 
value  of  his  property  engagcil  therein  would  be  entirely  lost, 
and  he  would  be  deprived  of  the  means  of  livelihood."  This 
for  the  purpose  of  showing  "that  the  act  is  void  because  it  de- 
prives the  defendant  of  the  lawful  use  of  his  property,  liberties 
and  facilities,  and  destro\'s  his  proj)erty  without  making  com- 
pensation." 

On  objection  by  the  district  attorney  that  the  testimony  re- 
ceived in  these  offers  was  irrelevant  and  immaterial  it  was 
excluded  by  the  court.  If  there  was  error  in  this,  defendant 
is  entitled  to  a  new  trial. 

But  we  are  unable  to  see  how  the  admission  of  this  testi- 
mony could  have  legally  changed  the  result. 

With  respect  to  the  first  offer,  we  are  by  no  means  pre- 
pared to  say  even  that  an  offer  to  show  that  the  oleomargarine 


16 


AMERICAN  CRIMINAL  REPORTS. 


--# 

-i 

T 

butter  or  butterine  is  made  generally  from  pure  animal  fats 
by  a  pure  and  wholesome  process,  and  is  as  wholesome  and 
nutritious  an  article  of  food  as  genuine  butter,  would  have 
been  relevant.  But  this  we  are  not  called  upon  to  decide. 
The  offer  was  made  to  show  merely  that  the  article  admitted 
to  have  been  sold  in  this  case  was  such.  No  one  doubts  that 
it  might  be  made  as  stated  in  the  offer.  But  it  is  no  less  cer- 
tain that  it  may  be  made  out  of  oleaginous  substances  and 
compounds  that  are  neither  pure  nor  wholesome.  How,  then, 
could  evidence  that  the  substance  sold  in  any  given  case,  and 
admitted  to  be  that  prescribed  by  the  act,  was  pure  and  whole- 
some, tend  to  show  that  the  statute  which  forbids  all  sales  is 
unconstitutional  ?  As  well  might  a  defendant  on  trial  for  sell- 
ing spirituous  liquors  in  a  jurisdiction  where  all  such  sales  are 
prohibited,  while  admitting  that  he  had  sold  the  prohibited 
article,  offer  to  prove  by  way  of  defense  that  the  particular 
glass  of  liquor  sold  was  pure  and  wholesome.  Witnesses  could 
be  called  in  almost  every  case  who  would  be  willing  so  to  tes- 
tify, but  no  court  would  admit  such  testimony  for  the  purpose 
of  showing  that  a  prohibitory  statute  was  unconstitutional. 

Indeed,  the  question  of  the  constitutionality  of  a  statute 
cannot  be  determined  on  the  testimony  of  witnesses,  for  the 
very  conclusive  reason  that  it  is  a  question  of  law  and  not  of 
fact,  and  must  be  decided  by  the  court  on  quite  other  grounds 
than  those  of  the  opinions  and  beliefs  of  witnesses.  We  are 
satisfied  it  was  not  error  to  refuse  the  testimony  recited  in  the 
first  offer. 

We  may  here  remark  that  this  offer  brings  into  view  one  of 
the  reasons  that  impelled  the  legislature  to  pass  this  act.  It 
states  that  the  amount  of  butterine  in  the  manufactured  arti- 
cle was  increased  by  the  introduction  of  milk  and  cream,  and 
that  the  only  effect  of  butterine  is  to  give  flavor  to  the  butter. 
Manifestly  the  purpose  was  to  give  this  article  as  nearly  as 
possible  the  flavor  and  semblance  of  butter,  so  that  it  might  be 
sold  as  such  by  the  retailer  without  detection,  and  no  doubt  this 
is  the  "  fraud  in  the  sale  "  which  the  act  was  designed  to  prevent. 

We  adopt  on  this  point,  and  apply  to  the  statute  now  in 
question,  the  language  of  the  supreme  court  of  Missouri  in 
State  V.  Addington,  77  Mo.,  110: 

*•  The  central  idea  of  the  statute  before  us  seems  very  mani- 


POWELL  V.  COMMONWEALTH. 


47 


fest;  it  was,  in  our  opinion,  the  prevention  of  facilities  for  sell, 
ing  or  manufacturing  a  spurious  article  of  butter  resembling 
the  genuine  article  so  closely  in  its  external  appearance  as  to 
render  it  easy  to  deceive  purchasers  into  buying  that  which 
they  would  not  buy  but  for  the  deception.  The  history  of 
legislation  on  this  subject,  as  well  as  the  phraseology  of  the 
act  itself,  very  strongly  tends  to  confirm  this  view.  If  this 
was  the  purpose  of  the  enactment,  we  discover  nothing  in 
its  provisions  which  enables  us,  in  the  light  of  the  authorities, 
to  say  that  the  legislature  when  passing  the  act  exceeded  the 
power  confided  to  that  department  of  the  government.  And 
unless  we  can  say  this  we  cannot  hold  the  act  as  being  any- 
thing less  than  valid." 

As  to  the  second  offer,  it  is  to  be  observed  that  defendant 
did  not  propose  to  prove  that  the  article  was  manufuctured  by 
him,  nor  that  he  purchased  it  or  owned  it  prior  to  May  21,  the 
date  of  the  passage  of  the  act,  nor  even  prior  to  July  1,  when 
it  went  into  effect.  Therefore,  as  was  said  of  a  like  offer  by 
]\rr.  Justice  Bradley  in  his  concurring  opinion  in  Bartemeyer 
V.  Jowa,  IM  Wall.,  120,  on  page  136:  "  The  law  was  not  in  this 
case  an  invasion  of  ])ropert3' existing  "  —  in  the  defendant  — 
"  at  the  date  of  its  passage,  and  the  question  of  depriving  a 
person  of  property  without  due  process  of  law  does  not  arise. 
No  one  has  ever  doubted  that  the  legislature  may  prohibit  the 
vending  of  articles  deemed  injurious  to  the  safety  of  society, 
provided  it  does  not  interfere  with  vested  rights  of  property." 

The  motions  for  a  new  trial  and  in  arrest  of  judgment  are 
overruled,  and  the  district  attorney  is  at  liberty  to  move  for 
judgment  upon  the  verdict. 

On  2t)th  January,  ISSG,  the  court  sentenced  the  defendant  to 
pay  a  fine  of  $100  and  costs  of  ])rosecution,  or  give  bail  to  pay 
the  same  within  ten  days,  and  directed  that  he  be  in  custody 
until  the  sentence  was  complied  with.  On  16th  March  a  writ 
of  error  was  allowed  by  the  supreme  court  upon  which  the 
following  opinions  were  rendered : 


Sterkett,  J.  In  his  opinion  overruling  the  motions  for  a 
new  trial  and  in  arrest  of  judgment,  the  learned  president  of 
the  quarter  sessions  has  so  fully  and  conclusively  vindicated 
the  correctness  of  the  rulings  complained  of  in  the  several 


48 


AMERICAN  CRIMINAL  REPORTS. 


*  PI 


i 

*  P'lg 


d 


specifications  of  error  tlmt  the  judgment  may  well  be  affirmed 
for  the  (.'ojront  and  satisfactory  reasons  there  presented.  He 
lias  shown^very  clearly,  we  think,  that  the  act  of  ^lay  21, 1885, 
under  which  plaintilf  in  error  was  indicted,  is  not  in  conflict 
with  any  provision  of  cither  the  state  or  federal  constitution, 
and  that  the  general  assembly,  in  enacting  the  law,  did  not 
transcend  the  limits  of  legislative  authority;  but,  if  there 
should  be  any  doubt  as  to  the  constitutionality  of  the  act  on 
either  of  those  or  on  any  other  ground,  that  doubt  should  be 
resolved  in  favor  of  the  validity  of  the  act  as  aproi)er  exercise 
of  legislative  power. 

As  was  said  in  Erie  cG  lY.  E.  R.  R.  Co.  v.  Casey,  20  Ta.,  287- 
300:  "  The  right  of  the  judiciary  to  declare  a  statute  void  and 
to  arrest  its  execution  is  one  which,  in  the  opinion  of  all 
courts,  is  coupled  with  responsibilities  so  grave  that  it  is  never 
to  be  exercised  except  in  very  clear  cases.  One  department 
of  the  government  is  bound  to  presume  that  another  has  acted 
rightly.  The  i)arty  who  wishes  to  pronounce  a  law  unconsti- 
tutional takes  upon  himself  the  burden  of  proving  beyond  all 
doubt  that  it  is  so."  Or,  as  the  principle  is  tersely  stated  by 
the  late  Chief  Justice  Siiakswood:  "Nothing  but  a  clear  viola- 
lion  of  the  constitution  — a  clear  usurpation  of  power  prohib- 
ited —  will  justify  the  judicial  department  in  pronouncing  an 
act  of  the  legislative  department  unconstitutional  and  void." 
Pennsylvania  R.  R.  Co.  v.  Rihlet,  66  Pa.,  164-169.  In  the  same 
case  it  is  further  said:  "We  cannot  try  the  constitutionality 
of  a  legislative  act  by  the  motives  and  designs  of  the  law- 
makers, however  plainl}'-  expressed.  It  the  act  itself  is  within 
the  scope  of  the  authority,  it  must  stand." 

These  principles  are  necessary  incidents  of  the  law-making 
power.  In  creating  a  legislative  department  and  conferring 
upon  it  the  legislative  power,  the  people  must  be  understood 
to'liave  conferred  the  full  and  complete  authority,  as  it  vests 
in  and  may  be  exercised  by  the  sovereign  power  of  any  state, 
subject  only  to  such  restrictions  as  they  have  seen  fit  to  im- 
pose, and  to  the  limitations  which  are  contained  in  the  consti- 
tution of  the  United  States.  The  legislative  department  is  not 
made  a  special  agency  for  the  exercise  of  specially  defined 
legislative  powers,  but  is  intrusted  with  the  general  authority 
to  make  laws  at  discretion.    Cooley,  Const.  Lim.,  87. 


POWELL  V.  COMMONWEALTH. 


40 


The  act  of  May  21,  1885,  is  entitled  "  An  act  for  the  protec- 
tion of  the  public  health,  and  to  prevent  adulteration  of  dairy 
products,  and  fraud  in  the  sale  thereof."  It  cannot  bo  doubted 
that  the  general  assembly  is  invested  with  full  power  to  legis- 
late for  the  protection  of  the  public  health,  or  to  prevent  the 
adulteration  of  articles  of  food,  as  well  as  imposition  or  fraud 
in  the  sale  of  such  articles.  In  the  absence  of  anj'  constitutional 
inhibition  or  limitation  the  sovereign  power  of  the  state  to 
enact  laws  for  the  public  good  appears  to  embrace  these  sub- 
jects of  legislation;  but,  however  that  may  be,  they  come 
fairly  within  the  police  powers  of  the  state.  These  powers,  as 
described  by  Judge  Kedfield  in  Thorpe  v.  Railroad  Co.,  27 
V^.,  "!  19,  extend  "to  the  protection  of  the  lives,  limbs,  health, 
comfort  and  quiet  of  all  persons,  and  the  protection  of  all 
property  within  the  state,  .  .  .  and  by  which  persons  and 
property  are  subjected  to  all  kinds  of  restraints  and  burdens 
in  order  to  secure  the  general  comfort,  health  and  prosperity 
of  the  state;  of  the  perfect  right  to  do  which  no  question  ever 
was,  or,  upon  acknowledged  general  principles,  ever  can  be 
made,  so  far  as  natural  persons  are  concerned." 

The  statute  books  of  this  and  other  states  furnish  numerous 
examples  of  the  exercise  of  the  power  referred  to,  but  perhaps 
'  laws  most  nearly  identical  in  principle  with  our  act  are 
tlio^o  wliicii  j)rohibit  the  sale  of  adulterated  provisions.  The 
sale  of  pure  milk  and  jnire  water  mixed  may  be  made  a  penal 
ofTt  .ISO  {Com.  V.  Farrcii,  01  Mass.,  489;  Same  v.  Waite,  93  id., 
204),  or  adulterated  confectionery.  Com.  v.  Chase,  125  Mass., 
202;  Same  v.  Kvim,  132  id.,  11. 

The  statute  of  Massachusetts  declares,  "Whoever  sells  or 
keeps,  or  offers  for  sale,  adulterated  milk,  or  milk  to  which 
water  or  any  foreign  substance  has  been  added,"  shall  be  pun- 
ished, etc.  In  Com.  v.  Farren,  supra,  it  was  held  under  this 
statute  that  ^'tilty  knowledge  on  the  part  of  the  seller  need, 
not  be  averred  or  proved.  In  Com.  v.  Waitc,  snj)ra,  the  con-i 
tention  was  that,  inasmuch  as  it  is  innocent  and  lawful  to  sell 
either  pure  milk  or  pure  water,  or  both,  separately,  the  legis- 
lature has  no  power  to  make  the  sale  of  milk  and  water,  when 
mixed,  a  penal  offense,  unless  it  is  done  with  a  fraudulent  in- 
tent. But  the  court  said :  "  It  is  notorious  that  the  sale  of 
milk  adulterated  with  water  is  extensively  practiced  with  a 
Vol.  VII  — 4 


mik 


t 


<«HHMiHI 


50 


AMERICAN  CRIMINAL  REPORTS. 


fraudulent  intent.  It  is  for  the  legislature  to  judge  what  roa 
sonable  laws  ought  to  be  enacted  to  protect  the  people  against 
this  fraud,  and  to  adapt  the  protection  to  the  nature  of  the 
case.  .  .  .  The  court  can  see  no  grounds  for  pronouncing 
the  law  unreasonable  and  has  no  autlwrity  to  judge  of  its  ex- 
pediency." 

Speaking  of  the  prohibitory  liquor  law  of  Massachusetts, 
passed  in  180!),  the  supreme  court  of  the  United  States  says: 
"If  the  public  safety  or  the  public  morals  require  the  discon- 
tinuance of  any  manufacture  or  traffic,  the  hand  of  the  legis- 
lature cannot  be  stayed  from  providing  for  its  discontinuance 
by  any  incidental  inconvenience  which  individuals  or  corpora- 
tions may  suffer.  All  rights  are  held  subject  to  the  polico 
power  of  the  state.  .  .  .  Whatever  differences  of  opinion 
may  exist  as  to  the  extent  and  boundaries  of  the  police  power, 
and  however  difficult  it  may  be  to  i-ender  a  satisfactory  defi- 
nition of  it,  there  seems  to  be  no  doubt  tiiat  it  tloes  extend  to 
the  protection  of  the  lives,  liealth  and  projicrty  of  tho  citizens, 
and  to  the  preservation  of  good  order  and  the  ])ublic  morals. 
The  legislature  cannot,  by  any  conti-act,  divest  itself  of  the 
power  to  provide  for  these  objects.  They  belong  emphatically 
to  that  class  of  objects  which  demand  the  application  of  the 
maxim  sains  jmjjuU  iinj>}'e/iia  hw,  ixnd  they  are  to  be  attained 
and  provided  for  by  such  appropriate  means  as  the  legislative 
discretion  may  devise.  That  discretion  can  no  more  be  bar- 
gained away  than  the  power  itself."  JJce/'  Co.  v.  Massachu- 
setts, 97  U.  S.,  25. 

So  far  as  the  constitutionality  of  the  act  under  consideration 
depends  on  the  police  power  of  the  state,  it  may  safely  be  rested 
on  the  principle  underlying  the  cases  above  referred  to,  and 
those  that  might  be  cited.  The  numufacture,  sale,  and  keeping 
with  intent  to  sell,  may  all  alike  be  prohibited  by  the  legisla- 
ture, if  in  their  judgment  the  protection  of  the  public  from 
injury  or  fra^  '.  requires  it.  To  deny  tho  authority  of  the 
legislature  to  do  so  is  to  attack  all  that  is  vital  in  tho  police 
power.  To  refuse  recognition  of  the  power  in  a  given  case, 
because,  in  the  judgment  of  some,  the  legislature,  though  act- 
ing within  its  proper  sphere,  may  have  mistaken  the  public 
necessity  for  a  law  prohibitory  in  its  character,  is  to  make  the 
individual  judgment  superior  to  that  of  the  legishxture,  to 


POWELL  V.  COMMONWEALTH. 


51 


which  the  people  in  their  sovereign  capacity  have  delegated 
the  law-making  power.  The  fact  that  the  ])rohioited  sub- 
stances, in  a  pure  state,  may  be  wholesome  and  not  injuri- 
ous, is  irrelevant  in  a  judicial  inquiry.  The  wholesomeness 
will  not  render  the  act  unconstitutional.  The  statute  is  in- 
tended to  prevent  fraud  and  protect  the  public  health,  by  pro- 
hibiting tlie  manufacture  and  sale  of  substances  and  compounds 
whicii  furnish  the  temptation  to  commit  the  former,  and  which 
may  be  injurious  to  the  latter. 

As  was  said  by  the  supreme  court  of  ISfissouri  in  State  v.  Ad- 
dhvjtim^  77  Mo.,  11(»,  that,  to  render  the  law  unconstitutional, 
the  ])roliibited  articles  must  be  unwholesome,  would  utterly 
overthrow  the  police  power  of  the  state  —  overthrow  every 
law  the  wisdom  of  which  could  not  bear  the  test  of  scrutiny. 
The  case  last  referred  to  arose  under  a  statute  similar  to  ours, 
entitled  "An  act  to  prevent  the  manufacture  and  sale  of  ole- 
aginous substances,  or  com])ounds  of  the  same,  in  imitation  of 
pure  dairy  pioducts."  In  a  well-considered  opinion  the  consti- 
tutionality of  this  act  was  sustained  by  the  court  of  appeals 
(12  ]\Io.  App.,  214-22S),  and  afterwards  by  the  supreme  court 
of  that  state.  State  v.  A<hliti<jf<m,  77  j\lo.,  110.  "The  mere 
fact,''  as  was  said  in  that  case,  "that  experts  may  pronounce 
a  niiinufactured  article  intended  for  human  footl  to  be  whole- 
some or  harmless  does  not  lender  it  incompetent  for  the 
legislature  to  prohibit  the  manufacture  and  sale  of  the  article. 
The  test  of  a  reasonableness  of  the  police  regulation,  prohibiting 
the  nuiking  and  vending  of  a  particular  article  of  food,  is  not 
alone  whether  it  is  in  part  unwholesome  and  injurious.  If  an 
article  of  food  is  of  such  a  character  that  few  persons  will  eat  it, 
knowing  its  real  charact'ir*  if,  at  the  same  time,  it  is  of  such 
a  nature  that  it  can  be  imjiosed  upon  the  pisblic  as  an  article 
of  food  which  is  in  common  use  and  against  which  there  is  no 
jirejudice,  and  if,  in  addition  to  this,  there  is  probable  ground 
for  believing  that  the  only  way  to  prevent  the  public  from 
l)eing  defrauded  into  the  purchasing  of  the  counterfeit  article 
for  the  genuine  is  to  prohibit  Jiltogether  the  manufa^cture  and 
sale  of  the  former,  then  wo  think  such  a  prohibition  may  stand 
as  a  reasonable  jiolice  regulation,  although  the  article  prohib- 
ited is  in  fact  innocuous,  and  although  its  production  mi.oht 
be  found  beneficial  to  the  public,  if,  in  trying  it,  they  could 


mfpm 


52 


AMERICAN  CRIMINAL  REPORTS. 


*ll 


distinguish  it  from  the  production  of  which  it  is  the  imita- 
tion. .  .  .  The  manufacturers  may  brand  it  with  its  real 
name.  It  may  carry  tliat  brand  into  the  hands  of  the  broker 
or  commission  merchant,  and  even  into  the  hands  of  tlie  re- 
tail grocer;  but  there  it  will  be  taken  off,  and  it  will  be  sold 
to  the  consumer  for  real  butter,  or  it  will  not  be  sold  at  all. 
The  fact  that,  in  the  present  state  of  the  public  taste,  tlie  pub- 
lic judgment  or  the  public  prejudice  with  regard  to  it,  it  can- 
not be  sold  except  by  cheating  the  ultimate  purchaser  into  the 
belief  that  it  is  real  butter,  .  .  .  stamps  with  fraud  the 
entire  business  of  making  and  vending  it,  and  furnishes  a  jus- 
tification for  a  police  regulation  prohibiting  the  making  and 
vending  of  it  altogether."     Slate  v.  Addhujton,  supra. 

In  view  of  these  and  other  considerations  suggested  in  the 
opinion  referred  to,  and  also  in  that  of  the  court  below,  we 
cannot  say  the  act  in  question  is  a  valid  exercise  of  the  ])olice 
power  of  the  state.  The  legislature  was  doubtless  satisfied  that 
the  manufacture  and  sale  of  the  prohibited  articles  were  preju- 
dicial to  the  public  good  to  such  degree  that  a  remedy  was 
needed,  and  we  have  no  right  to  say  that  a  penal  statute  less 
severe  and  sweeping  in  its  terms  would  have  alTorded  an 
effective  remedy.  That  is  a  legislative  and  not  a  judicial  ques- 
tion. If  it  is  thought  the  legislature  erred  in  the  solution  of 
that  question  the  proper  course  is  an  appeal  to  them  to  correct 
the  error,  if  any  there  was. 

For  reasons  above  suggested,  and  others  more  fully  elabo- 
rated by  the  court  below,  we  think  the  judgment  should  be 
affirmed. 


GoRDOx,  J.  {dissenting):  I  regard  the  act  of  tlie  21st  of 
May,  18S5,  not  only  as  improvident  and  unreasonable,  but  as 
unconstitutional.  "Ko  person,  firm  or  corporate  body  shall 
manufacture  out  of  any  oleaginous  substance,  or  any  com- 
pound of  the  same,  other  than  that  produced  from  unadulter- 
ated milk  or  cream  from  the  same,  any  article  designed  to 
take  the  place  of  butter  rv  cheese  produced  from  pure,  un- 
adulterated milk,  or  cream  from  the  same,  or  imitation  or 
adulterated  butter  or  cheese,  nor  shall  sell,  or  offer  for  sale,  oi- 
have  in  his,  her  or  their  possession,  with  intent  to  sell,  the 
same  as  an  article  of  food."    A  glance  at  this  act  shows  that 


POWELL  V.  COMMONWEALTH. 


53 


its  purpose  was  to  protect  the  dairymen  at  the  expense  of  the 
consumer.  Canilot  a  pure,  wholesome  butter  be  made  from 
some  other  oil  than  that  extracted  from  milk?  Certainly  it 
can.  The  chemist  has  discovered  that  it  may  as  well  be  made 
from  the  fat  of  the  cow  as  from  the  fat  of  her  milk.  "  Oleo- 
margarine, when  made  under  the  formula  of  the  French  pat- 
ent, is  composed  mostly  of  beef  fat,  churned  with  milk  and 
colored  with  annato."  U.  S.  Agr.  Hep.,  1885,  p.  100.  Here, 
then,  is  a  pure  and  wholesome  article  of  food  in  every  partic- 
ular as  good  as  the  best  butter.  Why,  then,  shall  we  not  be 
permitted  to  make  use  of  it?  The  act  cannot  properly  be  re- 
garded as  a  police  regulation,  for  it  is  not  alleged  that  the 
prohibited  article  is  in  the  slightest  degree  injurious  to  the 
welfare  or  happiness  of  the  peoi)le  of  the  commonwealth. 
On  the  other  hand,  proof  to  the  contrary  was  offered,  so  that 
the  question  for  discussion  really  involves  the  right  of  the 
legislature  to  prohibit  the  manufacture  of  an  article  of  food 
without  regard  to  its  character  or  quality  —  a  question,  cer- 
tainly, of  very  serious  im|)()rt.  The  offer  of  proof  was  for  the 
purpose  of  showing  that  the  prescribed  manufacture  was  not 
subject  to  the  police  power  of  the  state,  and,  from  its  very 
nature,  could  not  be.  JJut  the  court  ruled  out  the  proposed 
evidence  as  irrelevant,  thus  declaring  that  the  legislature  was 
the  sole  judge  of  its  own  powers.  But  this  amounts  to  an  as- 
sumption that  the  legislative  power  is  such  that  the  manu- 
facture and  sale  of  any  article  of  food  whatever  may  be  pro- 
hibited. So  the  question  in  fact  is  not  one  of  police  power, 
but  whether  the  legislature  can,  in  contravention  of  fact,  as- 
sume that  any  given  article  of  commerce  is  within  the  scope 
of  its  police  powers,  and  thereupon  prohibit  its  manufacture 
and  use.  Truh',  if  this  position  taken  by  the  court  holow  be 
correct,  then  is  the  defendant's  case  indefensible;  for,  if  the 
legislature  can  define  its  own  powers  without  regard  to  consti- 
tutional limit,  an  appeal  to  this  court  is  to  no  purpose. 

In  this,  however,  the  commonwealth  is  at  fault.  The  quarter 
sessions  has  imposed  a  burden  upon  it  which  it  cannot  sustain. 
Its  counsel  have  said  a  great  deal  about  the  police  {)owers  of 
states,  and  have  cited  many  cases  to  ])rove  that  which  no  one 
has  i)rotcnded  to  deny.  But  they  have  utterly  failed  to  prove 
that  the  general  assembly  has  the  unrestricted  power  claimed 


54 


AMERICAN  CRIMINAL  REPORTS. 


:.     ■,..! 


K.iif 


for  it.  But,  if  this  astounding  assumption  fails,  the  defendant 
Avas  wrongfull}'  convicted.  Let  us,  then,  consider  to  what  re- 
sult a  doctrine  of  this  kind  must  necessarily  lead. 

We  must  take  it  that  that  which  was  sold  by  the  defendant 
was  good,  pure,  and  wholesome  food ;  for  such  was  the  })urporL 
of  the  proposed  proofs.  Hence  it  follows,  as  of  course,  that, 
if  the  legislature  can  prohibit  the  making  of  butter  from  any- 
thing but  milk,  it  can  prohibit  its  manufacture  altogether,  for 
pure  milk  is  certainly  no  better  than  pure  tallow,  and,  if  it  can 
prohibit  its  manufacture  from  the  latter,  it  can  also  from  the 
former.  If  it  can  make  unlawful  the  sale  of  one  kind  of  pure 
food,  it  can  in  like  manner  make  unlawful  the  making  and 
sale  of  any  other.  Lard,  as  it  is  found  in  the  market,  is  a 
manufactured  article,  and  is  largely  used  in  cooking  as  a  sub- 
stitute for  butter.  For  ages  this  has  been  the  case  as  well  in 
this  country  as  in  Europe,  and  no  legislature  has  as  yet  taken 
exception  to  the  practice  on  the  ground  of  its  unhealth fulness. 
Indeed,  in  this  commonwealth,  many  persons  subsist,  during 
the  winter  season,  almost  entirely  on  buckwheat  and  lard;  and 
with  hard-working  people,  who  require  large  quantities  of  car- 
bonaceous food,  this  diet  is  neither  unpleasant  nor  unwholesome. 
It  is  true  that  some  may  not  regard  it  as  good  as  butter;  never- 
theless it  is  cheaper,  and  therefore  within  the  reach  of  those 
who  cannot  afford  to  pay  for  butter.  Why,  then,  shall  it  not 
be  used  as  heretofore?  This  wonderful  act  of  1885  will  allow 
us  to  eat  it  as  a  substitute  for  pork,  or  beef,  or  bread,  or  as  a 
substitute  for  anything  else  but  butter.  And  yet  this  is  called 
a  police  regulation,— a  law  passed  for  the  preservation  of  the 
health  of  the  community.  To  me  it  looks  much  more  like  a 
regulation  passed  for  the  welfare  of  the  dairyman,  without 
regard  to  the  welfare  of  the  balance  of  the  people,— class 
legislation,  that  political  curse  which  the  framers  of  our  con- 
stitution endeavored  to  prevent,  but  which  our  general  assem- 
bly seems  disposed  to  perpetuate. 

Nor  are  we  to  forget  that  by  our  decision  we  do  not  merely 
give  force  to  an  act  of  assembly,  but  are  also  establishing  a 
precedent  of  the  most  dangerous  character;  for,  if  the  legisla- 
ture can  arbitrarily  prevent  the  citizen  from  making  or  selling 
any  given  article  of  food,  it  can  also  prevent  the^buying  o"- 
same,  however  excellent  it  may  be,  and  however 


using 


the 


III 


POWELL  V.  COMMONWEALTH. 


65 


necessary  for  the  preservation  of  his  own  life  and  happiness, 
and  that  of  his  family.  Yet  this  is  the  doctrine  which  this 
court  is  about  to  establish  by  its  decision, —  a  doctrine  which 
must  necessarily  be  founded  on  the  ruins  of  the  bill  of  rights. 
What  a  commentary  on  nineteenth  century  progress  and  civil- 
ization! This  act  has  made  Chinese  conservatism  respectable. 
The  chemist  has  discovered  a  process  by  which  an  important 
article  of  food  can  be  manufactured  more  cheaply  than  by  the 
old  methods,  and  the  man  of  scant  means  is  thus  promised  an 
addition  to  his  meager  fare  which  he  could  not  previously 
afford.  Naturally,  we  must  suppose  that  this  inventor  would  be 
hailed  as  the  benefactor  of  his  race,  since  he  has  thereby  added 
much  to  the  happiness  of  the  laboring  class  of  the  people, 
"  liut  no,"  say  our  law-makers,  "  he  is  a  malefactor,  and  shall 
neither  make  nor  sell  his  product."  And  why?  If,  indeed, 
the  legislature  had  not  in  view  the  protection  of  the  dairy- 
man, 1  would  like  to  be  told  by  some  one  what  it  had  in  view. 
Of  course  the  commonwealth  will  not  admit  this  as  a  solution 
of  the  question;  for,  if  a  fact  of  that  kind  could  be  made  to 
appear,  the  unconstitutionality  of  the  act  would  be  undoubted. 
Hence  this  idea  of  police  power  has  been  set  up  as  a  lure, 
which  has  been  only  too  successful  in  attracting  the  attention 
of  the  court  below,  as  well  as  this  court,  from  the  real  issue. 
What  we  have  here  said  with  reference  to  the  legislative  in- 
tention is  made  all  the  more  certain  from  the  fact  that  the  acts 
of  May  22,  1878,  and  of  June  10,  1881,  ha<l  already  afforded 
sufficient  ])rotection  to  the  community  from  deception  in  the 
sale  and  adulteration  in  the  manufacture  of  butter,  so  that,  as 
a  police  regulation,  the  act  of  1885  was  not  necessary.  We 
cannot,  therefore,  but  think  that  there  can  be  but  little  if  any 
doubt  that  this  act  Avas  designed  to  protect  the  interests  of  the 
producer  at  the  expense  of  the  welfare  and  rights  of  the  con- 
sumer. 

Thus  viewing  the  matter  before  us,  I  feel  myself  constrained 
to  dissent  from  the  judgment  of  this  court. 

Note. —  Adulteration  of  dairy  products. —  In  People  v.  Arensberg,  105 
N.  Y.,  123,  tlie  (dfoiiso  for  which  the  defeiulant  was  indicted,  and  of  which 
he  was  convicted,  was  that  at,  etc.,  lie  "did  unlawfully,  wilfully  and  know- 
ingly have  in  his  possession  for  sale,  keep  for  sale,  offer  for  sale,  and  cause 
and  procure  to  he  sold,  to  certain  persons,"  etc.,  "a  nuniher  of  pound.s 


"W 


56 


AMERICAN  CRIMINAL  REPORTS. 


I> 


1       ill 


of  a  certain  article  and  product,  made  and  manufactured  in  semblance  and 
imitation  of  natural  butter,  that  is  to  say,  butter  made  and  produced  from 
pure,  unadulterated  milk,  and  cream  from  the  same,"  etc.,  "the  same  not 
being  then  and  there  natural  butter,  as  he  (the  said  Lipman  Arensberg) 
then  and  there  well  knew,—  against  the  form  of  the  statute,"  etc. 

The  statute  wliich  the  defendant  was  accused  of  violating  was  section  7 
of  chapter  183  of  the  Laws  of  1885,  entitled  "  An  act  to  prevent  deception 
in  the  sale  of  dairy  products,"  etc.  That  section  prohibits  (1)  tiie  manufact- 
ure out  of  any  animal  fat,  or  animal  or  vegetable  oils,  not  produced  from 
unadulterated  milk,  or  cream  from  the  same,  of  any  product  in  imitation 
or  semblance  or  designed  to  take  the  phice  of  natural  butter,  produced  from 
milk,  etc. ;  ("i)  mixing,  compounding  with,  or  adding  to  milk,  cream,  or 
butter,  any  acids  or  other  deleterious  substances,  or  animal  fats,  etc.,  with 
design  or  intent  to  produce  any  article  in  imitation  or  semblance  of  iiatural 
butter;  (3)  selling,  or  keeping,  or  offering  for  sale  any  article  manufactured 
in  violation  of  the  provisions  of  tiie  section. 

The  indictment  contained  three  counts,  the  first  charging  the  defendant 
with  manufacturing  the  prohibited  article:  the  second  with  mixing  with 
milk,  cream  and  butter  the  prohibited  substance,  and  the  third  with  selling 
the  prohibited  article.  He  was  acquitted  on  the  first  and  second  counts, 
and  convicted  on  the  third. 

Rapalio,  J.,  said :  "  Tiie  defendant  contends  that  the  provisions  of  the  sev- 
enth section  are  in  violation  of  the  constitution  of  this  state,  and  subversive 
of  his  constitutional  rights  of  liberty  and  the  enjoyment  of  property,  and 
he  relies  upon  the  decisions  of  this  court  in  Kc  Jacobs,  98  N.  Y.,  98,  and 
People  V.  Marx;  99  N.  Y.,  377. 

"The  Case  of  Jacobs  arose  under  a  dilferent  statute,  and  related  to  a  dif- 
ferent subject,  viz.,  the  manufacture  of  cigars  in  tenement  houses.  It  has 
no  bearing  upon  the  present  case  except  in  so  far  as  it  declares  general 
principles  which  are  sought  to  be  applied  to  the  statute  now  in  question. 
The  case  of  PcojAe  v.  Marx  has  a  more  direct  ajiplication,  as  it  arose  under 
the  act  of  which  the  one  now  under  consideration  is  an  amendment  or  sup- 
plement. The  section  under  which  the  defendant  in  that  case  was  indicted 
was  section  6  of  chapter  202  of  the  Laws  of  1884.  That  section  provided  as 
follows : 

"  '  Sec.  0.  No  person  shall  manufacture,  out.of  any  oleaginous  substance, 
or  any  compound  of  the  same,  otiier  than  that  produced  from  unadulter- 
ated milk,  or  of  cream  from  the  same,  any  article  designed  to  take  the 
place  of  butter  or  cheese  produced  from  pure  unadulterated  milk,  or  cream 
of  the  same,  or  shall  sell  or  offer  to  sell  the  same  as  an  article  of  food.' 

"  That  section  was  held  to  be  unconstitutional  for  the  reason  that  the  pro- 
hibition was  not  confined  to  unwholesome  or  simulated  substances,  but  ab- 
solutely prohibited  the  manufacture  or  sale  of  any  compound  designed  to 
be  used  as  a  substitute  for  butter  or  cheese,  however  wholesome  or  valuable, 
or  however  openly  and  fairly  the  character  of  the  substance  might  be 
avowed  and  published;  that  the  act  could  not,  therefore,  be  regarded  as  a 
health  law,  nor  as  intended  to  prevent  deception  by  the  sale  of  a  simulated 
article  as  genuine ;  and  stress  was  laid  in  the  opinion  upon  the  fact  that  the 
prohibition  was  not  of  the  manufacture  or  sale  of  an  article  designed  as  an 


POWELL  V.  COMMONWEALTH. 


57 


imitation  of  dairy  butter,  but  of  any  article  designed  to  take  the  place  of 
dairy  butter,  however  dissimiliar  in  color  or  appearance  the  artificial  prod- 
uct might  be  to  ordinary  dairy  butter.  Other  statutory  provisions,  aimed 
at  the  imitation  of  dairy  butter,  were  referred  to  without  criticism,  and 
without  intimating  any  doubt  of  their  validity.  Among  tliose  were  the 
provisions  of  cliapter  315  of  the  Laws  of  1883,  which  prohibit  the  introduc- 
tion of  any  substance  into  imitation  butter  or  cheese  for  the  purpose  of  im- 
parting thereto  a  color  resembling  that  of  yellow  butter  or  cheese. 

"  Assuming,  as  is  claimed,  that  butter  made  from  animal  fat  or  oil  is  as 
wholesome,  nutritious  and  suitable  for  food  as  dairy  butter;  that  it  is  com- 
posed of  the  same  elements,  and  is  substantially  the  same  article,  except  as 
regiirds  its  origin;  and  that  it  is  cheaper;  and  that  it  would  be  a  violation 
of  the  constitutional  rights  and  liberties  of  the  people  to  prohibit  them  from 
manufacturing  or  dealing  in  it,  for  the  mere  purpose  of  jnotecting  the  pro- 
du  "ers  of  dairy  butter  against  competition, —  yet  it  cannot  be  claimed  that 
the  producers  of  butter  made  from  animal  fat  or  oils  have  anj-  constitutional 
right  to  resort  to  devices  for  the  purpose  of  making  their  product  resemble 
in  ai)pearance  the  more  expensive  article  known  as  *  dairy  butter,'  or  that 
it  is  beyond  the  power  of  the  legislature  to  enact  such  laws  as  they  may 
deem  necessary  to  prevent  the  simulated  article  being  put  ujioii  the  market 
in  such  a  form  and  manner  as  to  be  calculated  to  deceive.  If  it  possesses 
the  merits  which  ai'e  claimed  for  it,  and  is  innocuous,  those  making  and 
dealing  in  it  should  be  protected  in  the  enjoyment  of  liberty  in  those  re- 
spects; but  they  may  legally  be  required  to  sell  it  for  and  as  what  it  act- 
ually is,  and  upon  its  own  merits,  and  are  not  entitled  to  the  benefit  of  any 
additional  market  value  which  may  be  imparted  to  it  by  resorting  to  artifi- 
cial means  to  make  it  resemble  dairj'  butter  iu  appearance." 

In  State  v.  Grores  and  Othem,  15  R.  I..  308 ,  a  case  arising  under  the  Public 
Statutes  of  Rhode  Island,  chapter  370,  section  3,  provides  that  in  all  prose- 
cutions under  this  act  (for  selling  adulterated  miflv),  if  the  milk  shall  be 
shown  upon  analysis  to  contain  more  than  eighty-eight  per  cent,  of  watery 
fluids,  etc.,  it  shall  be  deemed,  for  the  purpose  of  this  act,  adulterated. 
Held,  that  this  is  not  unconstitutional  as  virtually  confining  the  testimony 
to  the  analysis  of  the  samples  taken  by  the  inspector,  which  samples  are 
destroyed  in  the  making  of  the  analysis,  so  tiiat  the  testimony  cannot  be 
controverted,  because  the  testimony  can  be  controverted  by  evidence  of 
collateral  facts  going  to  prove  that  the  analysis  is  incorrect. 

It  was  held  in  People  v.  Clipperly,  101  N.  Y.,  0^4,  that  the  legislature  has 
the  power  to  enact  a  law  prohibiting  the  si.le  of  impure  or  adulterated 
uiilk;  and  also  that  they  may  declare  that  any  milk  that  contains  more 
than  eighty-eight  per  cent,  of  water  is  imjjure.  The  court  say:  "  Wiiat 
determined  the  legislature  to  fix  this  standard  we  do  not  know.  But  it 
may  be  supposed  that  different  kinds  of  food  produce  diireront  degrees  of 
richness  of  milk,  and  it  may  be  known  to  the  legislature  that  certain  kinds 
of  food  —  the  softened  and  innutritions  grain,  kit  after  the  production  of 
ale  or  gray  sugar —  will  cause  a  great  flow  of  watery  milk;  and  it  may  be 
known  to  the  legislature  that  this  watery  milk,  supplied  as  food  to  chil- 
dren, cheats  them  with  the  appearance  of  nourishment,  and  dej)rives  them 
of  that  nutritious  food  which  they  need.     It  may  be  known  to  the  legisla- 


■^ 


58 


AMERICAN  CRIMINAL  REPORTS. 


tors,  then,  that  milk  below  the  standard  which  they  fix  by  this  law  is  un- 
suitable for  food,  and  should  not  be  sold.  At  any  rate,  all  this  is  matter 
for  the  legislature.    In  re  Brosnahan,  4  Am.  Cr.  R.,  16. 

Police  poivcw—^ao  Maiiin  v.  Blattner,  6  Am.  Cr.   R,,.148  and  note, 
pp.  150-103. 


VAroHAN  V.  State. 
Brazil  v.  Samk. 

(83  Ala.,  55.) 

Adultery:  Knowledge  of  former  marriage. 

1.  Knowledge  of  former  marpjage.— When  a  formal  marriage  is  cel- 

ebrated, under  license,  by  an  otticor  havin;?  authority,  but  the  man 
has  another  wife  living,  the  marriage  is  unlawful ;  but  the  woman  is 
not  criminally  guilty  of  living  in  adulttu-y  (Code,  J^  4184)  unless  it  is 
shown  that  she  had  knowledge  of  the  former  marriage,  or  continued 
the  cohabitation  after  acquiring  knowledge:  "and  the  proof  or  pre- 
sumption must  be  strong  enough  to  repel  all  reasonable  doubt."'  ' 

2.  Admission  of  irrelevant  testimony  —  Doctrine  of  harmless  error. 

In  a  criminal  case  the  admission  of  irrelevant  evidence  against  the 
objection  of  the  defendant  will  work  a  reversal,  although  the  appel- 
late court  may  not  be  able  to  see  that  injury  thereby  resulted  there- 
from. 
8.  Sentence  — Correction  on  appeal.— In  a  case  of  misdemeanor  a 
sentence  to  hard  labor  for  costs,  on  non-payment  or  confession  of  judg- 
ment, cannot  exceed  eight  months  (Code,  )^4731;  Sess.  Acts  1880-81, 
p.  37),  but  a  judgment  for  a  longer  tern;  will  be  corrected  and  alHrmed 
when  the  i-ecord  shows  no  other  error. 

From  the  County  Court  of  Macon ;  Hon.  W.  II.  Hurt,  Judge. 
•  Prosecutions  for  living  in  adultery. 

T/ios.  N.  McClellan,  attorney-general,  for  the  state. 

Stone,  C.  J.  The  two  defendants  named  above  were  sepa- 
rately tried  on  warrant  and  complaint  for  living  together  in 
adultery.  Eachel  Yaughan  waived  a  jury,  and  was  tried  by 
the  presiding  judge.  Milton  Brazil  was  tried  by  a  jury.  Both 
were  convicted,  and  a  line  of  $100  assessed  against  each.  Fine 
and  costs  not  being  paid  by  either,  in  each  case  there  was  sen- 
tence to  hard  labor  for  the  county  for  the  non-payment  of  the 
fine  and  costs.     Tiioso  sentences  are  in  all  respects  regular. 

'  See  note. 


VAUGHAN  V.  STATE.    BRAZIL  v.  SAME. 


69 


with  a  single  exception  which  we  will  notice  further  on. 
There  seems  to  be  no  controversy  as  to  the  following  facts: 
In  1S80  the  defendant,  Milton  Brazil,  obtained  a  license  and 
under  it  was  formally  married  to  Silvia  Vaughan,  an  author- 
ized ofiicer  performing  the  ceremony.  It  is  neither  shown  nor 
pretended  that  Silvia  has  died,  and  we  must  therefore  presume 
that  she  still  lives.  In  1880,  and  continuing  up  to  the  time  of 
the  commencement  of  this  prosecution,  tlie  defendants,  Rachel 
Yaughan  and  Milton  Brazil,  have  lived  and  coliabited  together, 
occupying  the  same  bed  and  claiming  to  be  husband  and  wife. 
This  cohabitation  has  been  in  ]\[acon  county.  The  testimony 
tends  to  show  that  the  said  ALilton  and  Ilachel  were  formally 
married  in  the  state  of  ]\Iississi])pi  in  18S3. 

Tht;  main  defense  relied  on  is  that  before  the  marriage  of 
the  said  Milton  and  Silvia  in  1880  the  latter  (Silvia)  had  inter- 
married with  one  Bozeman,  who  was  still  living,  and  that,  as 
a  consequence,  Stilton's  subse()uent  nuirriage  with  the  said 
Silvia  was  bigamous  and  void;  that,  being  void,  it  ojiposed  no 
obstacle  to  his  later  marriage  to  Rachel  in  1888.  and,  as  a  nec- 
essar}'^  result,  the  cohabitation  of  Milton  and  Rachel  complained 
of  in  these  prosecutions  was  not  adulterous  but  lawful.  So 
that  the  most  important  inquiry  of  fact  was  whether  the  said 
Silvia  had  been  previously  married  t<j  r»()zeiiian.  On  that  con- 
troverted inquiry  the  testimony  was  in  conflict.  Stated  as  the 
testimony  is  in  the  bills  of  exceptions  (they  are  copies  of  each 
other  so  far  as  this  question  is  concerned),  it  fails  to  produce 
satisfactory  conviction  that  Silvia  and  Jjozoman  were  over 
married,  and  hence  there  is  a  failure  to  establish  the  invalidity 
of  Milton's  iiKiiriage  with  the  former.  That  marriage  not 
being  shown  to  be  invalid  the  later  cohabitation  of  Milton 
and  Ilachel  as  husband  and  wife  was  unlawful,  notwithstand- 
ing they  may  have  conformed  to  every  requisite  of  a  valid 
marriage.  So,  if  there  is  nothing  else  in  this  case,  the  convic- 
tion must  stand. 

We  will  now  treat  the  cases  separately;  first  considering 
that  of  Rachel  Yaughan.  The  bill  of  exceptions  states  that  it 
contains  all  the  evidence.  The  testimony  shows  that  Milton's 
marriage  with  Silvia  was  in  1880,  and  in  Macon  county,  Ala- 
bama.    It  tends  to  show  that  his  later  marriage  with  Rachel 


60 


AMERICAN  CRIMINAL  REPORTS. 


i  I 


was  in  1883,  and  in  Mississippi.  There  is  not  a  semblance  of 
proof  tending  to  show  that  Eachel  knew  or  had  ever  hoard  of 
the  marriage  of  Milton  and  Silvia,  or  that  she  was  in  a  situa- 
tion to  raise  the  presumption  that  she  muse  have  known  it. 
True,  the  women  were  sisters,  and  a  strong  suspicion  may  arise 
that  she  knew  of  the  marriage.  Suspicion  is  not  enough. 
The  proof  or  presumption  must  have  been  strong  enough  to 
repel  all  rciisonablo  doubt.  If  the  marriage  with  Silvia  was 
valid  under  the  rules  declared  above,  as  we  think  the  trial 
court  was  justified  in  finding,  this  necessarily  invalidates  the 
marriage  with  Kachel,  unless  the  iirst  had  been  dissolved  by 
death  or  some  other  lawful  cause;  but  it  would  not  render  her 
criminally  guilty  of  adultery  unless  she  is  shown  to  have  had 
knowledge  of  the  iirst  marriage  and  submitted  to  conjugal 
relations  afterwards.  In  the  absence  of  such  knowledge  she 
was  both  morally  and  legally  guiltless  of  ci'ime.  The  testimony 
did  not  justify  Eachors  conviction. 

As  to  Milton  Brazil's  case.  The  court,  against  defendant's 
objection,  allowed  the  prosecution  to  ask  him  on  cross-exam- 
ination as  a  witness  many  questions,  and  to  obtain  answers  to 
them,  as  to  a  mortgage  made  by  him,  and  as  to  the  quantity 
of  cotton  he  had  picked  out,  which  were  wholly  irrelevant  to 
the  charge  preferred  against  either  defendant.  Wc  confess 
that  we  are  not  able  to  perceive  clearly  what  influence  these 
questions  or  the  answers  to  them  could  have  exerted  in  the 
deliberations  of  the  jury.  Possibly  their  tendency  was  to 
raise  an  inquiry  into  the  fair  dealing  of  the  witness,  who  was 
himself  the  defendant  on  trial.  It  is  not  enough,  however, 
that  we  cannot  perceive  the  injury.  Prima  fade,  injury  is 
presumed  when  error  is  shown.  It  would  be  a  hazardous  pre- 
cedent to  establish  the  doctrine  of  error  without  injury,  when 
a  criminal  accusation  is  under  review.  The  county  court  erred 
in  admitting  this  testimony. 

In  fixing  the  amount  of  hard  labor  to  be  performed  in  pay- 
ment of  costs,  the  judgment  of  the  court  was  in  each  case 
imperfect.  The  statute  has  declared  a  maximum  beyond 
which  such  punishment  shall  not  extend.  Eight  months  is  the 
maximum  in  cases  of  misdemeanor.  Armstrong  v.  State,  on/r. 
45.    If  this,  however,  was  the  only  error,  we  would  not  re- 


PEOPLE  V.  LEE  GAM. 


Gl 


verse,  but  would  correct  and  affirm.     There  is  nothing  in  the 
other  questions  raised. 

The  jiulginent  in  each  case  is  reversed,  and  the  cause 
remanded. 

Note. —  Indictment.— In  State  v.  Miller,  CO  Vt.,  90,  it  is  lield  that  under 
the  Revised  Laws  of  Vermont,  section  4241,  pros'idinj;  tliat  '*  n  man  with 
another  man's  wife,  or  n  woman  witii  another  woman's  luishand,  found  in 
hed  together  under  circumstances  affording  presumption  of  an  illicit  inten- 
tion, shall  each  be  punished,"  etc.,  an  indictment  charging  tliat  tlie  respond- 
ent, "being  then  and  there  a  man,"  was  found  in  l)ed  with  another  man's 
wife,  "  under  circumstances  adording  presumption  of  an  illicit  and  feloni- 
ous intention,"  is  bad  in  that  tlioro  is  no  allegation  as  to  what  the  "  illicit 
intention  "  was. 

In  Sttttc  V.  (iiiest.  100  N.  C,  410,  it  is  held  immaterial  that  an  indictment 
against  two  defendants  for  fornication  and  adultery  erroneously  describe 
one  defendant,  a  fenude,  as  a  "  spinster,"  and  such  error  is  no  ground  for 
arrest  of  judgment. 

Witncsn. —  Where  two  defendants  are  indicted  for  fornication  and  adid- 
tery.  and  the  female  [)leads  guilty,  licr  husband  is  a  competent  witness 
against  the  otlier  defendant.     Id. 

Efidviice. —  On  the  trial  of  a  defendant  for  fornication  and  adultery  it  is 
not  error  to  admit  evidence  of  acts  committed  anterior  to  the  two  years  be- 
fore the  finding  of  the  indictment,  the  limit  prescribed  by  statute,  nor  as  to 
acts  committed  outside  of  the  county;  such  evidence  being  admissible  to 
aid  the  jury  in  determining  the  character  of  the  acts  charged  in  the  indict- 
ment, of  which  there  must  have  been  some  evidence.  Id.  See  State  v. 
Donovan,  4  Am.  Cr.  It ,  25,  note. 


Pkoplk  v.  Lke  Gam. 

(69  Cal.,  553.) 

Alibi:  Instnietions —  Reasonable  dmiht. 

1.  Evidence  —  Alibi. —  Instructions  concerning  evidence  and  effect  of 

proving  an  alibi  reviewed,  and  held  not  erroneous.^ 

2.  Homicide  —  Murder  —  Ixstkuctioxs  —  Manslauohter. —  On  a  trial 

upon  a  charge  of  murder,  if  from  the  evidence  it  is  clear  that  the  crime 
of  manslaughter  is  not  involved,  it  is  not  error  for  the  court  to  refuse 
to  give  an  instruction  defining  "  nianshingliter." 
8.  Instructions  —  Alibi  —  Re-vsonablk  doubt.— On  a  trial  for  murder, 
where  an  alibi  is  set  up  as  a  defense,  an  instruction  was  not  improp- 
erly refused  that  "  if  you  [the  jury]  believe  that  the  knife  and  pistol 

'  See  note. 


AMERICAN  CRIMINAL  REPORTS. 


tr^r 


which  are  said  to  have  been  found  near  the  deceased  at  the  time  of  the 
arrival  of  tlie  officers  were  the  property  of  the  deceased,  you  will  give 
the  defendant  the  benefit  of  every  rational  doubt  growing  out  of  such 
circumstances."  Sucli  instruction  was  misleading,  and  the  jury  could 
not  understand  therefrom  whether  the  rational  doubt  must  be  of  de- 
fendant's guilt  or  of  some  other  matter  of  an  uncertain  nature. 

Appeal  from  a  judgment  of  the  Superior  Court,  Santa  Clara 
County,  anil  from  an  order  refusing  a  new  trial. 

The  twenty-third  instruction  requested  by  the  defendant  and 
refused  by  tlie  court  was  to  the  effect  that  the  jury  could  find 
the  defendant  guilty  of  murder  in  the  first  or  second  degree, 
or  of  manslaugiitor. 

The  further  facts  are  stated  in  the  opinion. 

T.  D.  Eioi'dan,  J.  II.  Catiipldl  and  Xijijh,  Fairiocaiher  tfe 
Durst,,  for  appellant. 

Attorney-General  2Iarshall,  Iloiodl  C.  21oove  and  i>.  W. 
Burchard,  for  respondent. 

FooTK,  C.  The  defendant  was  tried  upon  a  charge  of  mur- 
der. From  the  judgment  of  conviction  thereof  in  the  first 
degree,  and  the  order  denying  him  a  new  trial,  he  appealed. 
It  is  argued  by  counsel  in  his  behalf  that  the  court  erred  in  its 
charge  to  the  jury  in  that  part  referring  to  the  defense  made 
of  an  alibi,  which  was  as  follows:  "Upon  this  point  the  testi- 
mony is  in  irreconcilable  conflict.  The  defendant  could  not 
have  been  in  these  two  places  at  the  same  time,  and  in  this 
contradiction  of  witnesses  the  jury  have  to  determine  for  them- 
selves where  lies  the  truth.  In  so  judging  they  will  take  into 
consideration  the  appearance  and  apparent  candor  and  fairness 
of  the  respective  witnesses,  the  probability  of  their  statements, 
its  coincidence  with  other  facts  or  features  of  the  case  which 
they  may  deem  established,  and,  generally,  those  rules  of  or- 
<linary  experience  and  general  observation  by  which  intelligent 
men  decide  as  to  the  controverted  propositions  of  fact.  The 
effect  of  an  alibi,  when  established,  is  like  that  of  any  other 
conclusive  fact  presented  in  a  case.  Showing,  as  it  does,  that 
the  i3arty  asserting  it  could  not  have  been  present  at  the  time 
of  the  homicide,  and  therefore  did  not  participate  in  it,  is,  when 
credited,  a  defense  of.  the  most  conclusive  and  satisfactory 
character.    The  fact,  however,  which  experience  has  shown, 


PEOPLE  r.  LEE  GAM. 


g;3 


that  an  aliht,  as  a  defense,  is  capable  of  being,  and  has  been 
occasionally,  successfully  fabricated;  that  oven  when  wholly 
false  its  detection  may  be  matter  of  very  great  diiliculty ;  and 
that  the  temptation  to  resort  to  this  as  a  spurious  defense  may 
be  very  great,  especially  in  cases  of  importance, —  these  are 
consiilerations  attendant  upon  this  defense  which  call  for  some 
special  suggestions  upon  the  part  of  the  court.  These  are  tluit 
while  you  are  not  to  hesitate  at  giving  this,  as  a  defense,  full 
weight, —  that  conclusive  effect  to  which,  when  established,  it 
is  justly  entitled,  either  as  entirely  satisfying  you  of  the  inno- 
cence of  the  defendant,  or  as  creating  the  reasonable  doubt 
which  entitles  the  defendant  to  an  acquittal, —  still  you  are  to 
scrutinize  the  testimony  offered  in  the  support  of  an  alihi  with 
care,  that  you  may  be  satisfied  that  a  fabricated  defense  is 
not  being  imposed  upon  you." 

Taking  the  charge  as  a  whole,  and  giving  it  an  unstrained 
intei'i)retation,  it  does  not  appear  that  the  jury  were  instructed 
upon  the  weight  of  evidence.  The  part  objected  to  was  ver}'' 
simihu'  to  that  given  by  the  learned  judge  below  in  the  case 
of  Pi-iiple  /'.  WoHij  Ah  Foo,  GO  Cal.,  ISO;  and,  as  was  said  there, 
so  it  sliould  be  declared  here,  that,  '"viewed  in  the  light  of 
good  sense,  we  do  not  see  that  the  language  eom[)lained  of 
went  beyond  a  reasonable  and  fair  latitude  of  observation,  per- 
missible from  the  judge  to  a  jury,"  Bish.  Crim.  Proc,  982, 
1U(;4. 

From  the  evidence  in  the  case  it  w'as  very  clear  that  the 
crime  of  manslaughter  was  not  inv(jlved  therein,  and  hence  the 
refusal  of  the  court  to  give  the  defendant's  twenty-third  in- 
struction was  proper,  as  the  jury  would  not  have  been  war- 
ranted in  rcmlering  a  verdict  of  manslaughter. 

Neither  do  we  think  that  defendant's  fifteenth  instruction 
was  impro{)erly  refused,  it  being  as  follows:  "If  you  believe 
from  the  evidence  that  the  knil'c  antl  pistol  exhibited  before 
you,  and  which  are  said  to  have  l)t'en  found  near  the  deceased 
at  the  time  of  the  arrival  of  the  oiKcers,  were  the  ])roperty  of 
the  deceased,  you  will  give  the  defendant  the  benefit  of  every 
rational  doubt  growing  out  of  such  circumstances," —  for  the 
reason  that  it  was  not  claimed  for  the  defendant  on  the  trial 
that  he  was  present  at  the  killing  of  the  man  alleged  to  have 
been  murdered  by  him,  nor  did  he  pretend  that  he  had  been 


(U 


AMERICAN  CRIMINAL  REPORTS, 


there  assailed  by  the  deceased.  The  proposed  instruction  was 
calculated  to  mislead  and  confuse  the  jur\'.  It  does  not  inform 
them  about  iclnd  they  might  entertain  a  reasonable  doubt,  from 
the  circumstances  jiresnmed  to  exist,  and  hence  they  could  not 
have  understood  therefrom  whether  the  rational  doubt  must 
be  of  the  defendant's  guilt  or  some  other  matter  of  an  uncer- 
tain character. 

Th.o  testimony  of  F.  M.  Pfister  is  also  objected  to.  That 
was  to  a  certain  extent  corroborative  of  other  testimony  intro- 
duced for  the  pe()|)le,  tending  to  prove  that  the  defendant  and 
two  other  (Chinamen  were  in  his  office  as  a  justice  of  the  peace 
on  the  14th  of  January,  and  was  admissible.  But  even  grant- 
ing such  evidence  had  not  been  relevant,  as  claimed,  the  fact 
that  the  witness  in  his  testimony  did  not  identify  the  defend- 
ant as  present  at  tiiat  time  could  have  worked  no  disadvantage 
or  prejudice  to  hi  in. 

The  judgment  and  order  should  be  affirmed. 

Searls,  C,  and  IjKLcuEn,  C.  0.,  con(5urred. 

Bv  THE  Court.     For  the  reasons  given  in  the  foregoing  opin- 
ion the  judgment  and  order  are  affirmed. 
Rehearing  tlenied. 

Note.— Ill  Slate  v.  Fmlai^on,  78  JIc,  495,  it  is  held  not  error  for  the  court 
to  instruct  tiie  Jury  tiiat,  to  make  mere  distance  from  the  scene  of  action  a 
conclusive  answer  as  an  alibi,  it  n\nst  be  shown  to  be  so  great  as  to  render 
it  impossible  for  tlie  dolendant  to  have  participated.  See  Waters  v.  State, 
4  Am.  Cr.  R.,  33,  and  note. 


mi 


Watson  v.  State. 

(83  Ala.,  60.) 

Arpest:  Liability  of  person  assist liif,  qficcr  for  assault. 

WRoxciFL-i.  ARitEsT  —  LiAun.rrv  OF  by-stander  AssiSTixa  officer.— 
A  sheriiT  or  olhor  lawful,  oi'lcer  may  require  any  by-stander  to  assist 
him  in  making  arrest,  and  a  refusal  to  assist  him  is  a  criminal  offense 
(Code,  5=^  413!},  .IC.GG);  and  though  the  officer  may  be  a  trespasser  in 
making  the  arrest,  as  by  arresting  one  person  under  a  warrant  of  ar- 
rest for  another,  a  by-stander  assisting  him  on  demand,  knowing  his 
official  character,  is  not  criminally  responsible. 


WATSON  V.  STATE. 


G5 


From  the  Circuit  Court  of  Butler  County;  Hon.  John  P. 
Hubbard,  Judge. 

D.  A.  Watson  was  irdictcd  for  committing  an  assault  and 
baiterx'  on  Harrison  Ward  wliile  assisting  an  officer  to  arrest 
him  under  a  warrant  for  another  person.  Watson  was  con- 
victed, and  appeals. 

Gainhh  tO  lilohardso}},  for  appellant. 

IViomas  If.  McClelkDh  attorney -general,  for  the  state. 


Cr-OPTON,  J.  The  defendant  was  convicted  on  a  charge  of 
having  committed  an  assault  and  battery  on  Harrison  Ward. 
The  only  material  question  ])resented  by  the  record  is  whether 
the  defendant  is  guilty  of  the  offense  charged,  if  lie,  without 
doing  more,  and  using  no  excess  of  force,  tnerehj  arrested,  se- 
cured and  delivered  him  to  the  deputy  sheritf,  who  a  few 
moments  previously  had  called  on  the  defendant  to  assist  in 
making  the  arrest,  infoi-ming  him  that  he  had  a  warrant  for 
Ward's  arrest,  but  in  fact  had  no  such  warrant,  having  mis- 
taken him  for  another  person  of  the  same  surname,  but  differ- 
ent Christian  name.  \\\  section  -iOOO,  Code  of  ISTC,  it  is  made 
the  duty  of  every  person,  when  required  to  do  so  by  nn  ofKc^r, 
to  assist  him  in  nuiking  an  arrest;  and  by  section  4131)  it  is 
made  a  criminal  offense  to  refuse  or  neglect  to  obev  the  com- 
maud  of  any  sliei'iff,  constable  or  other  otlicer  having  author- 
ity, when  summoned  or  commanded  to  assist  such  olllcer  in 
making  an  arrest.  Any  oflicei',  authorized  by  law  to  make 
arrest,  is  cmj)owered  to  summon  or  command  necessary  and 
proper  assistance  in  apprehending  criminals.  A  dei)uty  sheriff 
is  authorized  to  miikeari'ests.  In  1  Ihshop's  Criminal  Procedure, 
section  185,  the  author  says:  "The  officer,  then,  in  making  an 
arrest,  or  in  securing  his  prisoner  afterwards,  may,  if  he  deenjs 
it  necessary,  call  upon  a  by-staniler  for  help,  or  even  command 
the  aid  of  all  persons  in  his  ))recinct,  and  equally  whether  he 
is  acting  under  a  warrant  or  without.  A  refusal  to  assist  him 
is  indictable,  provided  he  is  proceeding  by  lawful  authority; 
or,  if  he  is  not,  his  command  will  be  a  justification  to  one  who, 
knowing  his  oflicial  character,  comes  in  good  faith  to  his  as- 
sistance." The  power  of  the  officer  to  command  assistance, 
when  necessary,  is  essential  to  the  due  execution  of  the  crini- 
Vol.  VII -5 


C6 


AMERICAN  CRIMINAL  REPORTS. 


inal  Jaw  and  to  the  protection  of  society.  This  power,  which 
extends  to  calling-  to  his  aid  tlie  posse  cor/n'fafu-s,  oftentimes 
would  be  unavailing,  especially  in  emergencies  requiring 
prompt  action  and  assistance,  if  the  person  summoned  Avas  re- 
quired to  examine  the  papers  of  the  otfieer,  and  determine  his 
authority  to  malce  the  particular  arrest, —  whether  it  would  bo 
safe  to  assist  him.  The  ollicer  is  empowered  by  the  statute  to 
determine  the  necessity  and  time  of  assistance,  and  prompt 
obedience  is  the  duty  of  the  person  summoned  or  commanded. 
The  necessity  does  not  admit  of  delay.  Tlie  officer,  if  acting 
without  warrant,  may  be  a  trespasser;  bat  the  private  person 
may  relv  upon  his  own  ollicial  character  and  his  call  for  aid,  and 
will  bo  protected  in  doing  what  he  is  not  at  liberty  to  refuse 
or  neglect.  It  is  sufficient  if  the  general  official  authority  of 
tlie  ])erson  calling  for  aid  to  make  ariests  is  known.  When 
his  general  power  is  known  his  call  will  justify  the  citizen  in 
yielding  obedience,  unless  he  has  notice  of  the  want  of  au- 
thority in  the  particular  case  in  which  assistance  is  lequired. 
It  would  be  a  strange  legal  anomaly  to  ]nuiish  a  citizen  for 
obeying  the  command  of  an  officer  invested  with  lawful  au- 
thority to  command  in  the  matter,  and  at  the  same  time  sub- 
ject him  to  punishment  if  he  refuses  or  neglects  to  obey.  The 
duty  is  not  devolved  to  inquire  whether  the  officer  has  a  pro- 
cess authorizing  the  arrest  or  into  the  legality  of  the  ])rocess. 
M<-M<(Ii(tn  V.  Green,  ?A  Vt.,  09;  /.V,v/  v.  llhe,  2  J.  J.  ]\[arsh.. 
44.  Several  of  the  rulings  of  the  court  coiidict  with  the  rule 
herein  declared.  It  is  unnecessary  to  specify  them.  Reversed 
and  remanded. 


Dir.i.oN  V.  O'Brikn  &  Daa'is. 

Arrest:  Seizure  and  detention  of  chattels  found  on  prisoner  for  use  as 

evidence  against  Jiim. 

(Ireland  —  Excliequer  Division,  10  Cox,  Cr.  C,  245.; 

Arrest  under  warrant  —  Peace  officers  —  Taking  and  detention  of 

CHATTELS  AS  EVIDENCE  TO  BE  USED  ON  PROSECUTION  FOR  A  MISDE- 
MEANOR.—When  a  person  is  arrested  for  conuiiittiDK  a  felony  or  misde- 
meanor, any  property  in  his  possession  believed  to  have  been  used  by 


DILLON  V.  O'BRIEN  &  DAVIS. 


67 


liiin  for  the  purpose  of  committing  the  offence  mny  be  seized  and  de- 
tained !is  evidence  in  support  of  tlie  charge;  and,  if  necessary,  such 
pi(i|  <rty  may  be  taken  from  him  by  force,  provided  no  unnecessary 
k  lolcnce  is  used. 

Doniurrer  to  tlic  dofentlant's  statement  of  defense. 

Tli'^  action  was  biought  by  Jobn  Dillon,  M.  P.,  against 
J.  ^I.  (  '  11.  county  inspector,  and  II.  Davis,  district  inspector 
of  constabiiliiry,  to  recover  tbe  sum  of  2,000/.  damages  for 
malicious  prosecution,  assault,  and  trespass  and  assault,  and 
false  imprisonment,  and  for  1,000/.  damages  for  wrongful  seiz- 
rre  of  certain  bank-notes  and  coin,  and  certain  papers,  and  for 
tliL  v.iongful  detention  of  the  same. 

The  action  arose  out  of  the  arrest  of  the  plaintiff  and  others 
at  Lougbrea,  in  the  county  of  Gahvay,  by  the  defendants,  in 
obedience  to  a  warrant,  on  the  16th  day  of  December,  1SS6; 
and  also  the  seizure  and  detention  by  tbe  defendants  of  certain 
bank-notes,  coins  and  documents,  the  projjerty  of  the  plaintiff. 

The  pleatlings,  so  far  as  material,  are  suHiciently  set  forth  in 
the  report  of  the  Lord  Chief  Baron's  judgment  herein. 

]\ray  0.  Pallks,  C.  B.  This  case  was  argued  before  us  upon 
demurrers  to  the  si.xth  and  tenth  paragraphs  of  the  defense, 
so  far  as  the  same  are  pleaded  to  the  fifth,  sixth,  seventh 
and  eighth  paragraphs  of  the  statement  of  claim.  In  substance 
the  lifth  and  sixth  pai'agraphs  of  the  statement  of  claim  com- 
plain of  a  wrongful  taking  and  detention  of  certain  goods  of 
the  plaintiffs,  without  more;  and  the  seventh  and  eighth  para- 
graphs complain  of  taking  them  by  violence,  under  circum- 
stances amounting  to  an  assault  by  the  defendants  upon  the 
plaintiff.  We  shall,  in  the  first  instance,  treat  the  sixth  paragraph 
of  the  statement  of  defense  as  a  defense  to  the  tilth  and  sixth 
paragraphs  of  the  statement  of  claim  onl}'.  This  defense  alleges 
that,  before  and  at  the  time  of  the  acts  com))lained  of,  the  plaint- 
iff and  others  had  conspired  antl  combined  together  to  do  cer- 
tain acts,  which,  it  was  admitted  during  the  argument,  amounted 
to  a  conspiracy  indictable  at  common  law.  It  then  states  that 
on  the  lOlh  day  of  December,  1880,  the  plaintiff  and  others  of 
the  said  persons  did  certain  acts  in  furtherance  of,  and  as  a 
part  of,  the  said  conspiracy  within  the  county  of  Galway ;  that 
the  defendant  Hugh  Davis,  iLea  bein^^  a  peace  officer,  ap- 


1 


68 


AMERICAN  CRIMINAL  REPORTS. 


'II 


pearetl  before  a  justice  of  the  peace  in  and  for  the  county, 
and  made  complaint  to  him  on  oath  and  in  writing  of  the  con- 
spiracy, and  of  the  overt  acts  committed  within  the  county, 
and  that  the  justice,  by  his  warrant  (hitcd  the  said  IGth  day  of 
December,  ISSG,  commanded  the  defendant,  J.  M.  O'Brien, 
then  being  a  peace  olKcer,  and  his  assistants,  as  one  of  whom 
the  defentlant  Davis  justifies,  to  arrest  the  pUiintiff  and  bring 
him  before  the  justice  to  answer  the  comphunt.     The  defense 
then  alleges  that  the  defen(hints,  in  execution  of  this  warrant, 
entered  the  house  and  room  (the  outer  door  of  the  house  being 
then  open)  to  arrest  the  plaintiff;  that  the  plaintiff  was  then 
ill  the  room  with  others  of  the  parties  to  the  conspiracy,  and 
was  in  furtherance  of,  and  as  a  part  of,  that  conspiracy,  en- 
gaged in  receiving  rents  from  certain  tenants,  and  had  books 
and  papers  in  which  they  were  making  entries  of  the  receipt 
of  those  rents,  and  also  a  certain  telegram,  all  of  which  were 
being  used  for  the  purpose  of  such  combination  and  conspiracy ; 
and  that  the  defendants  thereupon  arrested  the  plaintiff  under 
the  warrant,  and  proceeds  to  justify  the  taking  and  detaining 
of  the  bank-notes  and  other  property  then  being  in  the  said 
house  and  room,  for  the  pui-pose  of  producing  the  same  as 
evidence  in  the  prosecution  of  the  plaintiff  and  others  for  so 
combining  and  consi)iring  as  aforesaid,  and  avers  that  the  same 
were  and  are  material  and  necessary  evidence  in  the  said  [)rose- 
cution,  which,  since  the  arrest,  has  been  and  still  is  pending. 
The  gist  of  this  defense  appears  to  be  that  the  plaintiff  was 
lawfully  arrested   for  an   indictable   offense,  of  which  it  is 
averred  he  was  actually  guilty;  that  at  the  time  of  his  arrest 
he  was  in  possession  of  certain  articles  which  were  material  and 
necessary  evidence  in  the  prosecution  for  such  offense;  and  the 
question  raised  is  whether  the  defendants  were  legally  justi- 
fied in  taking  those  articles  from  the  plaintiff  without  violence, 
or  anything  which  in  law  would  amount  to  an  assault,  and  in 
detaining  them   until  the  determination  of   the  prosecution. 
The  main  portion  of  the  argument  for  the  plaintiff  was  that, 
even  if  such  a  right  existed  in  reference  to  the  taking  of  evi- 
dences of  a  felony,  it  did  not  apply  to  misdemeanors;  bat  it 
was  also  (although  not  confidently)  contended  that  there  was 
no  right  even  in  treason  or  felony.     Before,  therefore,  I  pro- 
ceed to  deal  with  the  case  of  a  misdemeanor,  it  is  necessary 


DILLON  V.  O'BRIEN  &  DAVIS. 


69 


to  see  how  the  law  stands  in  reference  to  greater  crimes.  In 
doing  this,  I  desire  to  confine  myself  to  the  exact  question 
which,  I  thinlc,  arises  —  that  is,  to  a  case  in  which  tlie  allega- 
tion is  not  that  there  was  a  reasonable  suspicion  of  the  plaint- 
iff's guilt,  but  that  he  was  actually  guilty;  that  he  was  arrested 
whilst  in  the  actual  commission  of  the  crime;  that  the  articles 
taken  were  being  at  the  time  used  in  the  commission  of  the 
crime,  and  in  which  their  materiality  as  evidence  is  also  stated  as 
a  fact,  and  not  upon  suspicion.  If,  then,  the  right  here  claimed 
does  not  exist,  even  in  treason  and  felony,  it  would  follow 
that  upon  the  arrest  of  a  murderer  caught  in  the  act,  and  on 
the  moment  lawfully  arrested,  whilst  the  weapon  with  which 
the  crime  had  been  committed  was  in  his  hands,  it  would  be  ille- 
gal for  the  constable  to  detain  that  wea])on  for  the  purpose  of 
evidence;  so  also  would  it  be  illegal  for  the  oflicers  of  the 
law  to  take  possession  of  poisons  found  in  the  possession  of 
one  who  had  caused  death  by  poison ;  and,  even  in  treason,  let- 
ters from  co-traitors,  evidencing  the  common  treasonable  design, 
found  in  the  possession  of  a  traitor,  would  be  safe  from  cap- 
ture upon  his  arrest,  although  from  the  earliest  time  it  has  been 
the  settled  and  unvarying  |)ractico  to  seize  such  proofs  of 
guilt  and  give  them  in  evidence  at  the  trial.  Even  were  there 
no  trace  in  the  books  of  the  question  having  been  considered, 
this  invariable  pi'actice  in  trials  for  treason  and  felony  would 
prevent  my  affirming  the  i)laintifrs  contention.  But  in  truth 
the  point  is  not  without  authority.  There  are  at  least  three 
cases  in  which  attention  was  directed  to  the  question,  and  in 
which  the  existence  of  the  right  was  not  argued  but  as- 
sumed. I  refer  to  C/vzlcr  v.  Cunclcy,  6  B.  &  C,  232;  Hex 
V.  Barnelt,  3  C.  &  P.,  GOO;  Iluj.  v.  Frost,  9  C.  &  P.,  12'J. 
Crazier  v.  Ciuuley,  0  I}.  &  C,  232,  was  trespass  for  seizing- 
goods.  The  defendants  justified  under  a  search-warrant,  di- 
rectin"'  them  to  search  for  certain  goods  which  had  been 
stolen.  They,  however,  also  took  away  a  tin  i)an  and  sieve, 
which  were  not  mentioned  in  the  warrant.  Abbott,  C.  J.,  in 
giving  judgment,  says:  "The  warrant  [)roduced  in  evidence 
authorized  the  seizure  of  certain  arliolos,  but  unfortunately 
some  other  articles  also  were  taken.  If  those  others  had  been 
likely  to  furnish  evidence  of  the  identity  of  the  articles  stolen 
and  mentioned  in  the  warrant,  there  might  have  been  reason- 


70 


AMERICAN  CRIMINAL  REPORTS. 


able  ground  for  seizing  them,  although  not  specified  in  the 
warrant.  But  the  tin  pan  and  sieve  were  not  sucli  articles. 
I  have  expressed  myself  in  this  manner  in  order  to  ])revent 
the  supposition  that  a  constable  seizing  ai'tioles  not  mentioned 
in  the  warrant  under  wliich  lie  acts  is  necessarily  a  trespasser." 
In  AV.P  V.  Jjurvrtf,  ?>  C.  6c  P.,  COO,  the  jirisoner  had  been  com- 
mitted on  a  charge  of  murder.  His  counsel,  on  the  first  day 
of  the  assizes,  stated  to  the  judge  that  a  sum  of  31/.  15.y.,  which 
had  been  found  in  tiie  pocket  of  the  ])risoner,  w.  in  the  hands 
of  the  constable,  and  that  this  sum  of  money  was  in  no  way 
material  to  the  charge  against  the  prisoner.  Under  these  cir- 
cumstances he  applieii  for  an  order  that  it  should  be  returned 
before  the  trial.  Tark,  J.,  said:  "I  have  read  the  depositions, 
and  I  find  that  this  sum  of  money  is  not  in  any  way  material 
as  evidence  on  tlie  charge  made  against  tlie  prisoner.  I  shall 
therefore  order  it  to  be  delivered  to  him  forthwith."  The  fol- 
lowing note  is  appended  to  this  case:  ''We  are  informed  that 
Barrington,  the  celebrated  pick-pocket,  made  a  similar  appli- 
cation at  the  Old  Bailey,  at  the  time  of  his  arraignment  on  a 
charge  of  larconv  from  the  |)erson,  and  that  Eyre,  C.  B.,  di- 
rected the  money  found  upon  liim  to  be  forthwith  restoreil,  as 
it  did  not  appear  by  tlie  depositions  that  it  was  in  any  way 
material  to  tlie  charge  on  which  he  was  to  take  his  trial." 

In  Iii'(j.i\  Frost,  9  C.  &  P.,  12f>,  an  application  was  madg  to 
the  judges  at  the  ^fonmouth  special  commission  of  1830,  by 
Viw  Owen,  the  attoi-ney  on  behalf  of  one  of  the  prisoners, 
Z.  Williams,  that  10/.  which  had  been  taken  from  him  might  be 
returned.  Tindal,  C.  J.,  said:  "  Before  we  grant  your  applica- 
tion, Mr.  Owen,  we  must  know  if  the  money  forms  any  part 
of  the  proof."  ]\rr.  Wightman,  on  the  ])art  of  tiie  crown,  hav- 
ing stated  that  they  had  no  objection  to  the  money  being  re- 
turned, Tindal,  C.  J.,  made  an  order  accordingly.  I  therefore 
think  that  it  is  clear  and  beyond  doubt  that,  at  least  in  cases 
of  treason  and  fe'ony,  constables  ("and  jirobably  also  private 
persons)  are  entitled,  upon  a  lawful  arrest  by  them  of  one 
charged  with  treason  or  felony,  to  take  and  detain  property 
found  in  his  possession  which  will  form  matei-ial  evidence  in 
his  prosecution  for  that  crime;  and  I  take  the  only  real  ques- 
tion upon  this  defense  as  being  whether  this  right  exlends  to 
cases  of  misdemeanor.     No  case  has  been  cited  in  which  the 


DILLON  V.  O'BRIEN  &  DAVIS. 


n 


right  (in  reference  to  misdemeanor)  I^as  been  judicially  decided 
to  exist,  and  no  text-book  draws  the  distinction  here  atteni])ted 
to  be  drawn.  Tlie  matter  must  therefore  be  determined  on 
principle.  For  this  purpose  I  must  first  ascertain  the  reason 
of  the  rule  as  applicable  to  felony.  The  cluuactei'istic  (by 
which  felony  is  distinguished  from  misdemeanor)  is  that  at 
common  law  the  goods  of  the  felon  were  forfeited  upon  con- 
viction. The  only  right,  however,  to  these  goods  which  the 
books  mention  as  being  in  the  crown  before  conviction,  by 
reason  of  the  possible  future  conviction,  is  that  of  taking  (and 
detaining  them  for  a  reasonable  time)  for  the  purpose  of  mak- 
ing an  inventory.  iSucli  a  right  has  nothing  in  common  with 
that  of  taking  for  the  pui'iwse  of  evidence.  Foi-feiture  in  fel- 
ony, therefore,  cannot  be  the  origin  of  the  right.  To  what 
then  is  it  to  be  referred?  Its  purpose  and  object,  viz.,  to  pro- 
duce the  goods  in  evidence  in  a  judicial  proceeding,  appears 
to  mo  to  show  that  it  must  be  derived  from  the  interest  which 
the  state  has  iu  a  person  guilty  (or  reasonably  believed  to  be 
guilty)  of  a  crime  being  brought  to  justice,  and  in  a  prosecu- 
tion, once  commenced,  being  determined  in  due  course  of  law. 
On  the  existence  of  this  interest  in  the  state  many  of  the  most 
iu'portant  principles  of  our  jurisprudence  depend.  It  is  this 
interest  which  reiulers  illegal  an  agreement  to  compromise  a 
prosecution,  whether  for  felony  or  (with  one  possible  excep- 
tion, Keif  V.  Lrci/udi,  9  (}.  I].,  oTl)  for  misdemeanor.  It  is 
this,  too,  wliieli  prevents  even  a  malicious  prosecution  against 
an  innijcent  ])i'r.son  constituting  a  cause  of  action,  if  there  be 
reasonable  and  probable  cause  for  its  institution,  '["he  para- 
mount nature  of  this  interest  is  well  illustrated  by  the  power 
which  for  the  purpose  of  enforcing  it  the  law  gives  lo  the  of- 
ficer in  whose  custody  a  p('rst)n  charged  with  a  crime  lawfully 
is.  There  is  no  doubt  that  he  n\ay  kill  his  prisoner  in  case  of 
resistance  if  he  cannot  otherwise  secure  his  custody;  and  this 
as  well  when  the  charge  is  misden\eanor  as  felony.  Ihit  the 
interest  of  the  state  in  the  pei'son  cliarged  being  brought  to 
trial  in  tlue  c(ntrse  nec(>ssarily  extends  as  well  to  the  ))ri'servu- 
tion  of  material  evidence  of  his  guilt  or  innoionee  as  to  his 
custody  for  ihe  purpose  of  trial.  His  custody  is  of  no  value 
if  the  law  is  powerless  to  prevent  the  abstraction  or  destruction 
of  this  evidence,  without  which  a  trial  would  be  no  more  than 


m 


•>}  if 


'Jut 


m 


72 


AMERICAN  CKIMINAL  REPORTS. 


an  empty  form.  But  if  there  be  a  right  to  production  or  pres- 
ervation of  this  evidence  I  cannot  see  how  it  can  be  enforced 
otiierwiso  tlian  by  capture.  If  material  evidences  of  crime  are 
in  the  possession  of  a  third  party,  jjroduction  can  be  enforced 
by  tlie  crown  by  subp(i;na  <liu'es  tecum.  But  no  such  writ  can 
be  etfective  in  tlie  case  of  the  person  cliar<4ed.  It  appears  to 
me  to  be  clear  that  tiiis  must  bo  the  origin  of  the  right  in  fel- 
ony; and  tliat,  being  derived  from  the  common  law,  it  ought, 
prima  facie  at  least,  to  be  deemed  to  exist  in  all  cKses  in  which 
that  interest  of  the  state  exists,  and  cannot  (at  least  without 
express  authority)  be  so  confined  as  to  be  inapplicable  in  cases 
of  custodies  of  such  value  in  the  eyes  of  the  law  as  to  justify, 
for  their  preservation,  the  taking  of  life.  Let  mo,  however, 
assume  for  a  moment  that  the  rule  does  not  extend  to  misde- 
meanors, and  see  whetlier  the  results  which  would  necessarily 
flow  from  this  distinction  would  be  those  roasonablo  ones 
which  usually  are  found  to  spring  from  the  application  of  rules 
having  their  origin  in  the  common  law.  All  attempts  to  com- 
mit felonies  are  at  common  law  misdemeanurs  only;  and, 
therefore,  inflicting  a  mortal  wound  was,  at  common  law,  until 
the  actual  death  of  the  victim,  no  more  than  a  misdemeanor; 
and,  if  we  are  to  confine  the  rule  in  question  to  felonies,  we 
must  face  this  absurdity,  that  in  cases  of  murder  by  firing  at, 
wounding  or  poison,  the  riglit  of  tiie  constable  to  take  the 
instrument  of  tlie  crime  and  tlie  evidence  of  guilt  would  de- 
])end,  not  upon  the  commission  of  the  act  which  results  in 
death,  but  upon  the  victim  having  actually  ceased  to  breathe. 
All  reason  is  against  such  an  api)lication;  and  I  can  be  no 
party  to  it  unless  coerced  by  authority.  This  brings  me  to  the 
only  case  relied  on  by  the  plaintilf:  Judick  v.  Carrliujtoa,  1!) 
State  Trials,  1029,  10(53-1.  The  question  there  was  as  to  the 
legality  of  a  warrant,  not  only  to  seize  and  apprehend  the 
plaintilf  and  l)ring  him  before  a  secretary  of  state,  but  also  to 
seize  his  books  and  papers.  In  that  case  there  was  no  allega- 
tion of  the  i)lainti(T's  guilt,  nor  that  there  was  reasonable  or 
probable  cause  for  believing  him  guilty,  nor  that  a  crime  had 
in  fact  been  conmiitted  by  anyone,  nor  that  ho  had  in  his  pos- 
session anything  that  was  evidence  of  (or  that  tiiere  were  rea- 
sonable grounds  for  believing  might  be  evidence  of)  a  crime 
committed  by  him  or  any  one  else.  The  nature  of  the  question 


DILLON  V.  O'BRIEN  &  DAVIS. 


78 


there  is  shown  by  the  statement  of  Lord  Camden  that "  if  this 
l)oint  siioiiUl  bo  dctorniined  in  favor  of  the  jurisdiction  the  se- 
cret cabinets  and  bureaus  of  every  subject  in  this  kingdom  will 
be  thrown  open  to  the  search  and  inspection  of  a  messenger, 
whenever  tlie  sccretarv  of  state  shall  think  fit  to  charge,  or 
oven  to  suspect,  a  person  to  he  the  author,  printer  or  publisher 
of  a  seditious  libel."  Lord  Camden  takes  ])ains  to  show  that 
tiio  word  "pujiers"  in  the  warrant  could  not,  in  point  of  law, 
be  restrained  to  libelous  papers  only,  and  he  adds:  "All  the 
])apers  and  books,  without  exception,  if  the  warrant  bo  exe- 
cuted according  to  its  tenor,  must  be  seized  and  carried  away; 
for  it  is  observable  that  nothing  is  left  either  to  the  discretion 
or  to  the  iiumanity  of  tlie  otlicer."  It  was,  of  course,  decided 
tliat  that  warrant  was  illegal;  but  the  case  as  a  decision  is  not 
in  i)oint  here.  Tiio  rigiit  here  claimed  is  not  to  take  all  the 
plaintid's  ])apers,  but  those  only  which  are  evidence  of  his 
guilt;  and  the  claim  is  based,  not  as  in  Entlch  v.  Ca/')in;/(on, 
11)  State  Trials,  lu21),  upon  a  warrant  issued  npon  mere  sus- 
picion, but  upon  an  allegation  of  actual  guilt  and  a  lawful 
apprehension  of  the  guilty  ])erson.  If  (by  the  law  as  then 
undei'stood)  the  right  to  seize  evidences  of  guilt  in  the  ])0sses- 
sion  of  the  person  charged  was  con  lined  to  cases  of  treason 
and  felony,  the  judgment  would  have  been  rested  on  that  sim- 
ple ground,  the  care  which  was  taken  to  show  that  the  warrant 
embraced  all  papers  would  have  been  thrown  away,  and  the 
whole  of  the  elaborate  judgment  of  Lord  Camden  would  have 
been  unnecessary.  For  myself  I  am  satislied  tliat,  in  pro- 
nouncing that  judgment.  Lord  Camden  had  not  before  his 
mind  cases  of  seizure  of  evidences  of  guilt  upon  lawful  appre- 
hension, as  (listin"uislied  from  the  general  wari'ants  to  seize  all 
papers.  As  to  the  statutes  cited,  I  do  not  think  it  necessary 
to  refer  to  tliem  in  detail,  because  it  will  be  found  that  in  each 
of  them  the  powers  conferred  were  far  more  extensive  than, 
and  in  many  cases  wholly  different  from,  any  that  exist  at 
common  law.  I  have  now  to  consider  this  defense,  as  })leadcd 
to  the  seventh  and  eighth  counts  of  the  statement  of  claim,  in 
reference  to  which  the  defense  admits  that  more  violence  was 
used  than  would  have  been  necessary  for  the  purpose  of  ar- 
resting plaintilf,  and  justifies  it  as  necessary  for  taking  of  the 
papers.     As  the  right  to  take  the  ])apers  exists  I  think  it  clear 


II 

m 


M 


74 


AMERICAN  CRIMINAL  REPORTS. 


that,  in  some  states  of  circumstances,  tliere  must  bo  an  ancil- 
lary right  to  tiilvo  llieni  by  force  from  tiic  phiintill",  using  no 
unnecessary  violence. 

(His  lonisliii)  tlien  read  the  plea  as  follows:  "That  the  de- 
fendants neccmtrif!/ dk\  seize for  the  purpose  of  producin<? 

the  same  as  evidence;"  and  held  tliat  the  defense  was  good, 
and  that  tiie  demurrer  to  it  must  be  overruled.)  The  tenth 
paragraph  of  llie  defense  relies  upon  the  absence  of  a  demand 
in  writing  of  a  jjcrusal  or  copy  of  the  warrant  under  the  43 
Geo.  3,  chapter  143,  section  0;  24  Geo.  2,  chapter  44,  section 
(5,  which  deals  with  England.  (His  lordship  held  that  this 
defense  was  bad  so  far  as  it  was  pleaded  to  the  taking  of  the 
papers,  and  any  force  used  for  that  purposes  althoULjh  it  would 
have  been  good  if  pleaded  to  tiie  arrest  only.) 


IIeaiu)  v.  Statu. 

(81  Ala.,  5.1) 

Arson:  Dy  request  of  owner  to  defraud  iu.siiraiiee  company  —  Indictment 
fur  arson  in  the  second  de(jree. 

Burning  insured  buildino  at  rei^juest  of  owner, —  A  person  who  burns 
a  gin-lioiisu  insurt'd  against  lire,  by  tlu>  rciiuost  uf  the  owner,  to  enable 
liini  to  obtain  llie  in.suranco  money,  is  guilty  of  the  special  olVensu  tle- 
flnod  by  coilo  of  Alabanui,  section  4:J4'J,  and  liable  to  the  pnnisbment 
therein  prchcribed ;  but  he  is  not  guilty  of  aison  in  the  second  degree 
as  detscribetl  in  section  4o4T,  ileclaring  tliat  "any  po'riun  who  wilfully 
sets  lire  to  or  burns  any  church  ...  or  gin-honse,  .  .  .  which, 
with  the  property  therein  contained,  is  of  the  vjiluc  of  !j")00  or  more, 
is  guilty  of  arson  in  the  second  degree;  "  and  lie  cannot  be  convicted 
on  an  indictment  drawn  under  the  latter  section.' 

Appeal  from  Circuit  Court  of  Perry.  Tried  before  the  Hon. 
Judge  Moore. 

The  material  facts  are  stated  in  the  opinion.  On  the  trial, 
the  court,  among  other  things,  jharged  the  jury  "  thiit  if  they 
believed  from  the  evidence  beyond  a  reasonable  doubt  that  in 
this  county  (Terry),  in  August,  1880,  the  defendant  wilfully 
set  lire  to  and  burned  the  gin-house,  and  that  it  was  the  proj)- 
erty  of  A.  M.  Walker,  and  was  of  the  value  of  i<;jOO  or  more, 
then  defendant  was  guilty  as  charged  in  the  indictment,  even 

1  See  note. . 


HEARD  V.  STATE. 


75 


if  they  should  believe  he  did  it  at  the  instance  and  request 
of  Walker,  to  enable  WalUer  to  get  the  amount  for  wiiieli  it 
was  insured."    The  defendant  excepted  to  the  giving  of  this 


charge. 


,/.  ]V.  Ilwih,  for  appellant. 

2\  N'.  2lcClcllim,  attorney-general,  for  the  state. 


(JLoi'TON,  J,  The  defendant  was  tried  and  convicted  under 
an  indictment  found  under  section  4347  of  the  code  (1870) 
which  contained  two  counts,  each  of  which  charged  him  with 
burning  a  gin-house,  the  property  of  A.  W.  AValkor.  On  his 
cxaujination  as  a  witness  the  defendant  admitted  the  burning, 
but  stated  that  he  did  it  at  the  instance  and  by  emj)loyment 
of  the  owner,  Walker,  who  said  the  building  was  insured,  and 
that  tiie  insurance  company  had  treated  him  badly,  and  he 
wanted  to  get  even.  This  was  denied  by  "Walker,  but  the  de- 
nial dues  not  aH'cct  the  legal  question  involved,  as  by  the 
charge  of  the  court  an  incjuiry  into  the  truth  of  the  statement 
was  immaterial.  The  circuit  court  ruled  that  I  lie  defendant  is 
guilty  as  charged  in  the  indictment  if  he  wilfully  set  lire  to  or 
burned  the  gin-house,  and  it  was  the  property  of  Walker, 
though  he  did  it  at  the  instance  and  rerpiest  of  ihe  owner. 
The  instruction  raises  the  question  whether  a  i)erson  who 
burns  a  building  insured  against  lire,  b}'  request  of  the  owner, 
to  enable  him  to  obtain  the  insurance  money,  is  guilty  of  arson 
as  charged  in  the  indictment. 

The  statutes,  while  adding  structures  other  tiiau  those  in- 
cluded in  the  common  law,  and  dividing  arson  into  three 
degrees,  distinguished  by  the  character  of  the  buildings  or 
structures  and  the  attendant  circumstances,  were  not  designed 
to  create  pew  offenses.  The  essential  common-law  ingredients 
of  the  offense  still  exist.  At  common  law,  and  under  tlie  stat- 
utes, arson  is  regarded  as  a  public  wi'ong,  growing  out  of  an 
injury  to  the  possession  rather  than  the  property.  Adams  v. 
iStdte,  Cii  Ala.,  177.  A  man  may  burn  a  house  owned  and  occu- 
pied by  him,  or  he  may  procure  another  to  burn  it,  and  neither 
be  guilty  of  arson,  unless  the  tire  is  communicated  to  and 
burns  an  adjacent  building,  the  property  of  some  other  person, 
thouii'h  it  would  be  a  misdemeanor  if  the  structure  were  con- 


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AMERICAN  CRIMINAL  REPORTS, 


tiguous  to  Others  whereby  their  safety  was  endangered.  East, 
Cr.  L.,  1027;  1  Whart.  Criin.  Law,  830;  Sullivan  v.  State,  5 
Stew.  &  P.,  175.  Arson  consists  in  the  maHcious  and  volun- 
tary burning  of  the  house  of  another.  Malice  is  a  requisite 
constituent  under  tiie  statute,  as  at  common  law;  and  an  act 
done  by  one's  self  to  his  own  property,  no  injury  resulting  to 
another,  cannot  be  the  predicate  of  legal  malice.  Xeithercan 
the  defendant  be  said  to  have  acted  maliciously  towards 
Walker  it'  he  burned  the  gin-house  by  his  request,  to  enable 
him  to  convert  it  into  money. 

If  it  be  said  there  was  a  malicious  intent  as  to  the  insurance 
company,  malice  towards  a  person,  other  than  the  one  in  whom 
the  property  is  laid  in  the  indictment,  and  not  named  therein, 
is  inadmissible  to  sustain  the  charge.     If  any  person  wilfully 
burns  a  building  or  other  property  which  is  at  the  time  insured 
against  lire,  with  intent  to  charge  or  injure  the  insurer,  it  is 
declared  a  special  offense,  and  the  punishment  proscribed  by 
section  4319  of  the  code.     It  is  not  restricted  to  burning  a 
building,  but  extends  to  «»y  property  insured.     To  convict  of 
this  olfenso,  the  indictment  must  allege  the  statutory  constitu- 
ents,—  insurance  against  (ire,  and  the  intent  to  charge  or  injure 
the  insurer.    2£art'ui  v.  State,  29  Ala.,  30.     The  section  declares 
an  offense  separate  and  distinct  from  arson  as  delined  in  the 
three  sections  immediately  preceding, —  an  offense  including  a 
burning,  or  procuring  t )  be  burned,  by  the  owner,  not  from 
malice,  but  with  intent  to  defraud  another.     The  indictments 
require  different  allegations,  and  different  proof  is  called  for. 
The  statute  (9  Geo.  I.,  ch.  22)  which  enacted  that  any  person 
who  should  set  fire  to  any  house,  barn  or  outhouse  should,  on 
conviction,  be  adjudged  guilty  of  felony  without  benefit  of 
clergy,  did  not  contain  a  qualification  that  the  building  should 
be  the  property  of  another.     This  statute  came  up  for  con- 
struction  in  Sj)al</i/uj\i  Case,  1  Leach,  258,  who  was  indicted 
for  maliciously  and  voluntarily  setting  fire  to  his  own  house. 
The  buildings  adjacent  were  endangered,  and  the  defendant 
had  his  house  and  the  goods  in  it  insured.    The  statute  was 
construed  as  not  creating  a  new  offense,  and  the  indictment 
was  held  bad,  on  the  ground  that  arson  at  common  law  was 
the  burning  of  the  house  of  another.    The  same  construction 
of  the  statute  was  reiterated  in  other  cases.    2  East,  Cr.  Law, 


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HEARD  V.  STATE. 


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1122.  The  case  of  Com.  v.  Makely^  131  Mass.,  421,  is  substan- 
tially similar  to  the  present.  The  defendant  was  indicted, 
under  the  general  statutes,  for  burning  the  dwelling-house  of 
Ackert.  There  was  evidence  tending  to  prove  that  she  did  it 
by  procurement  of  Ackert,  to  enable  Iiim  to  obtain  the  insur- 
ance money.  It  was  held  that  the  indictment  is  not  sustained 
by  proof  that  the  defendant  burned  the  house  bj-^  the  owner's 
procurement,  to  enable  him  to  obtain  money  from  an  insurer. 
If  the  defendant's  tcstimoti}'  be  true,  he  is  guilty  of  a  viola- 
tion of  section  4349,  but  cannot  be  found  guilty  as  charged  in 
the  indictment.  The  truth  of  the  statement  should  have  been 
submitted  to  the  jury,  Avith  proper  instructions,  as  they  may 
find  it  to  be  true  or  f  Ise.    Reversed  and  remanded. 


InOTE. —  Under  section  4347,  Code  (Ala.),  in  the  case  of  Washington  v.  State, 
83  Ala.,  31,  it  was  held,  on  the  trial  of  defendants  for  having  set  fire  to  a 
barn,  tliat  the  term  "curtilage"  includes  the  yard  or  space  of  ground  near 
the  dwelling-house  contained  in  the  same  inclosure,  and  used  in  connection 
rtith  it  by  the  liousehold,  and  that  the  barn  in  question  opening  into  the 
yard  immediately  adjoining  the  dwelling,  and  forming  a  part  of  the  inclos- 
ure, must  be  considered  as  witliin  the  curtilage. 

Hiisbuud  burning  ivife's  hoime, —  In  the  case  of  Garrett  v.  State,  109  Ind., 
nST,  the  indictment  charged  that  defendant  did  feloniously,  wilfully  and 
nialiciouslj'  set  fire  to  and  burn  a  certain  dwelling-house,  then  and  there 
situate,  of  the  value  of  $1,000,  then  and  there  being  the  property  of  another 
person,  to  wit,  Hannah  Garrett ;  and  did  tlien  and  there  and  thereby  unlaw- 
fully, feloniously,  wilfully  and  maliciously  burn  and  destroy  said  property, 
to  the  damage  thereof  in  the  sum  of  $1,000,  contrary  to  the  form  of  the 
statute,"  etc. 

Upon  his  arraignment  appellant  filed  his  written  plea  or  answer  herein, 
in  two  paragraphs,  in  substance  as  follows:  (1)  That  lie  was  not  guilty  as 
charged  in  the  indictment;  and  (2)  for  a  further  and  special  answer  he 
averred  that  at  the  time  of  the  commifsion  of  the  alleged  offense  charged 
in  the  indictment  he  \.'as  of  unsound  mind.  To  this  second  parp  ^raph  the 
stiite  replied  by  a  general  denial.  The  issues  joined  were  tried  by  a  jury, 
and  a  verdict  was  returned  finding  ai)pellaiit  guilty  as  charged  in  the  indict- 
ment, and  assessing  his  punishment  at  confinement  in  the  state's  prison  for 
the  term  of  five  years  and  a  fine  in  the  sum  of  one  dollar.  Over  his  motion 
for  a  new  trial  the  court  rendered  judgment  against  him  on  the  verdict. 

In  deciding  the  case  the  court  says:  *'  Errors  are  assigned  here  by  the  ap- 
pellant which  call  in  question  (1)  the  overruliiig  of  his  motion  to  (juash  the 
indictment;  (2)  the  overruling  of  his  motion  for  a  new  trial;  and  (3)  the 
suificiency  of  the  facts  stated  in  the  indictment  to  constitute  a  public  offense. 

"  Only  one  objection  to  the  indictment,  or  to  the  sufficiency  of  the  facts 
stated  therein  to  constitute  a  public  offense,  has  been  pointed  out  by  appel- 
lant's counsel  in  their  brief  in  this  cause,  and  that  is  that  the  indictment 


78 


AMERICAN  CRIMINAL  REPORTS. 


wm 


w 


ouRht  to  have  shown,  by  proper  averment,  who  was  the  actual  occupant  of 
tlie  dwellinp-house  burned.  The  crime  for  which  appel'iint  wr.s  indicteJ, 
and  of  which  he  was  convicted,  is  defined  and  its  punishment  prescribed  in 
section  1937,  R.  S.  1881.  So  far  as  appHcable  to  the  case  in  hand  this  sec- 
tion provides  as  follows :  '  Whoever  wilfully  or  maliciously  burns,  or  at- 
tempts to  burn,  any  dwelling-house  or  other  building,  finished  or  unfinished, 
occupied  or  unoccuiued,  whether  the  building  be  used  or  intended  for  a 
dwelling-house  or  for  any  other  purpose,  .  ...  the  property  so  burned 
being  of  the  vahie  of  $20  or  upwards  and  being  the  property  of  another, 
.  .  .  is  guilty  of  arson,  and,  upon  conviction  thereof,  shall  be  imprisoned 
in  the  state  prison  not  more  than  twenty-one  years  nor  less  than  one  year, 
and  fined  not  exceeding  double  the  value'  of  the  property  destroyed.' 

"  It  is  manifest,  from  this  statutory  definition  of  the  olfense  charged  against 
the  appellant,  that  the  question  of  the  occupancy  of  the  dwelling-house 
burned  and  destroyed  was  an  immaterial  question,  and  that  it  was  therefore 
wholly  unnecessary  to  charge  in  the  indictment  who  was  the  oc(  upant  of 
such  dwelling-house.  It  was  necessary,  how»'ver,  under  the  statute,  that 
the  indictment  should  show,  as  it  did,  that  the  dwelling-house  biu-ned  was 
the  property  of  another  person  than  the  defendant,  and  should  give,  as  it 
did,  the  name  of  such  other  person.  Ritchey  v.  State,  7  Bhu-kf.,  1C8;  Wolf 
V.  State,  53  Ind.,  550.  In  the  case  under  consideration  it  was  averred  in  the 
indictment,  as  we  have  seen,  that  the  dwelling-house  burned  by  appellant, 
as  charged,  was  'the  property  of  another  person,  to  wit,  Hannah  Garrett.' 
On  the  trial  of  this  cause  it  was  shown  by  the  evidence  that  Hannah  Gar- 
rett, the  person  named  in  the  indictment  as  the  owner  of  the  dwelling-house 
burned,  was  the  wife  of  the  appellant  William  H.  Garrett,  and  that  he  and 
his  wife  Hannah  occupied,  used  and  dwelt  in  such  house  as  their  habitation 
and  dwelling-house.  Upon  this  evidence,  and  the  facts  shown  thereby, 
appellant's  counsel  have  predicated  what  they  denominate  as  'the  main 
question  in  the  case,'  namely:  Under  our  statute,  the  substance  of  which 
we  have  heretofore  quoted,  was  the  appellant  guilty  of  arson  in  sotting  fire 
to  and  burning,  as  he  did,  the  dwelling-house  as  charged  in  the  indictment? 
At  common  law,  arson  is  an  offense  against  the  possession,  and  under  that 
law  appellant  could  not  be  guilty  of  arson  in  setting  fire  to  and  burning  the 
dwelling-house  while  he  was  in  lawful  possession  thereof,  without  re  fere  ce 
or  regard  to  the  ownership  of  such  property.  McNcal  v.  Woods,  3  Blackf., 
485;  State  v.  Wolfenberger,  20  Ind.,  242;  3  Green!.  Ev.,  g,^  53,  54,  and  notes. 

" In  Snyder  v.  People,  26  Mich.,  100,  a  case  similar  in  manv  respects  to  the 
case  we  are  now  considering,  it  was  held  by  the  supreme  court  of  Michigan 
that  arson  is  an  offense  against  the  habitation,  and  regards  the  possession 
rather  than  the  property ;  and  that  a  husband  living  with  his  wife,  and  hav- 
ing a  rightful  possession  jointly  with  her  of  a  dwelling-house  which  she 
owns  and  they  both  occupj  ,  t  guilty  of  arson  in  burning  such  dwelling- 
house.  It  was  further  held  l^  the  same  learned  court,  in  the  same  case, 
that  the  statutes  of  the  state  of  Michigan  for  the  protection  of  the  rights  of 
married  women  had  not  changed  the  marital  unity  of  husband  and  wife, 
nor  had  they  changed  the  common-law  rule  as  to  arson,  where  the  burning 
is  by  tiie  husband  of  the  house  of  the  wife  occupied  by  both  as  a  dwelling 
or  residence;  that  such  burning  would  not  be  arson  at  common  law,  nor 


HEARD  V.  STATE. 


79 


was  it  tlie  burning  of  tlie  dwelling-house  of  another  contemplated  by  the 
statute  of  Micliigan  defining  the  offense  of  arson. 

"  Appellant's  counsel  chiefly  rely  upon  the  doctrine  of  the  case  last  cited 
for  the  reversal  of  the  judgment  in  the  case  under  consideration.  We  are 
of  opinion,  however,  that  it  cannot  be  correctly  said  that  our  statutes  for 
the  protection  of  tiie  rights  of  married  women  have  made  no  cliange  in  the 
marital  unity  of  huskind  and  wife  as  at  common  law,  in  so  far,  at  least,  as 
the  separate  property  of  the  wife  is  concerned.  Thus,  in  section  5117,  R.  S. 
J881,  in  force  since  September  19,  1891,  it  is  provided  as  follows:  "A  mar- 
ried woman  may  take,  acquire  and  hold  property,  real  or  personal,  by  con- 
veyance, gift,  devise  or  de.scent,  or  by  purchase  with  her  separate  moans  or 
money,  and  the  same,  togetlier  with  all  the  rents,  issues,  income  and  profits 
thereof,  shall  be  and  remain  her  own  separate  property,  .and  under  her  own 
control,  the  same  as  if  she  were  unmai-ried.'  Of  course  these  statutory 
provisions  are,  to  some  extent,  in  derogation  of  the  common  law,  and  must 
be  construed  strictly ;  but  in  so  far  as  the}'  are  inconsistent  with  the  common 
law,  and  the  marital  unity  of  husband  and  wife  recognized  therein,  they 
must  be  reganled  as  the  law  of  this  state.  Tliis  is  settled  by  our  decisions. 
Hadu  V.  Shaw.  01  Ind. .  'iS  1 ;  Frnzcr  v.  Clifford,  94  Ind.,  483 ;  Dodge  v.  Kinzy, 
101  Ind.,  102;  Bnnirft  r.  Ihtrnhbunjer,  10.">  Ind.,  410. 

"  Under  those  statutury  provisions,  declaring  that  tlie  property  of  a  mar- 
ried woman  '  shall  be  and  remain  her  own  separate  property  and  under  her 
own  control,  the  same  as  if  she  were  unmarried,'  it  must  l)e  lield.  we  think, 
as  we  now  hold,  that  the  dwelling-house  of  Hannah  Garrett  mentioned  in 
the  indictment,  though  occupied  by  her  and  her  husband,  the  appellant,  as 
a  dwelling  or  n  sidence,  was  the  property  of  another  person  than  the  appel- 
lant within  the  contemplation  of  our  statute  defining  the  offense  of  arson. 
It  will  V  readily  seen,  from  the  examination  of  section  1927,  supra,  that 
'arson,'  as  defined  in  our  statute,  is  a  different  offense  in  many  respects 
from  arson  at  common  law.  'Arson,'  as  defined  in  our  statute,  is  an 
offense  against  the  proiterty  as  well  as  the  possession;  and  'the  (juestion  of 
occupancy  or  non-occui)ancy,  habitation  or  non-habitation,  of  or  in  the 
property,  as  we  have  seen,  becomes  and  is  an  immaterial  question,  in  view  of 
the  statutory  definition  of  the  offense.  It  is  tlie  law  of  this  state,  we  tl)ink, 
that  if  a  man  unlawfully,  feloniously,  wilfully  and  maliciously  sets  fire  to 
and  burns  the  dwelling-house  of  his  wife,  wherein  she  permits  him  to  live 
with  her  as  her  husband,  he  is  guilty  of  the  crime  of  '  arson,'  as  such  crime 
is  defined  in  our  statute. 

"  It  is  claimed  that  the  trial  court  erred  in  excluding  certain  evidence 
offered  by  appellant  tending  to  prove  that  he  had  furnished  certain  money 
to  pay  for  building  the  house.  There  was  no  available  error,  we  think,  in 
the  exclusion  of  this  offered  evidence.  Even  if  he  had  furnished  all  the 
money  to  build  the  house,  it  became  an<l  was  the  property  of  his  wife;  and 
in  setting  fire  to  and  burning  such  house  ho  was  guilty  of  arson." 

Prior  threats. —  In  State  v.  Fenlason,  78  Me.,  495,  it  is  held  that  prior 
threats  of  accused  to  burn  same  building  are  admissible. 


mi 


■•■;/ 

I 
4 


80  AMERICAN  CRIMINAL  REPORTS. 


Jackson  v.  State. 
(49  N.  J.,  253.) 

Assault  with  intent  to  jiurder:'  Misdemeanor —Verdict  m  absence  of 

defendant, 

1.  Verdict  in  absence  of  accuse  ">.— The  rule  doiivcd  from  common- 

law  authorities  is  tliat  in  criminal  cases  the  character  of  tlie  punish- 
ment determines  the  power  of  the  jury  to  render  a  privy  verdict,  or, 
what  is  the  same  thing,  a  verdict  in  the  absence  of  the  accused.  The 
circumstance  that  takes  away  such  power  is  that  the  case  is  one  involv- 
ing life  or  member. 

2.  Assault  with  intent  to  commit  murder  was  only  a  misdemeanor  at 

common  law,  retains  that  character  in  the  statute,  and  is  punishable 
as  at  common  law  by  fine  and  imprisonment.  In  all  criminal  cases 
not  capital  a  verdict  taken  without  the  presence  of  the  accused  is  not 
irregular. 

3.  Instructions  —  Appeal. —  The  jury,  after  it  retired  to  consider  its  ver- 

dict, returned  into  court,  and  made  request  for  further  instructions  on 
a  point  material  to  the  case.  The  court  thereupon  informed  the  jury 
that  the  court  had  already  charged  fully  on  that  subjcrit,  and  declined 
to  charge  further.  The  charge  did  not  appear  in  the  case,  nor  were 
there  any  exceptions  to  it  on  the  record.  Held,  that  the  refusal  of 
further  instructions  was  not  erroneous. 

On  Writ  of  Error  to  the  Passaic  Court  of  Quarter  Sessions. 
Argued  before  Beasley,  Chief  Justice,  and  Justices  Depue, 
Vansyckel  and  Scudder,  at  November  term,  ISSG. 

Jo/i\  W.  Grif/f/s,  for  plaintiff  in  error. 
William  B.  Goiirhy,  contra. 

Depue,  J.  The  phiintiff  in  error  was  convicted  before  the 
Passaic  quarter  sessions  upon  an  indictment  for  an  assault 
with  intent  to  kill  find  murder.  On  being  charged  on  the 
indictment  the  defendant  was  admitted  to  bail  for  his  appear- 
ance for  trial.  He  was  present  at  the  trial,  and  appeared  b}' 
counsel,  and  was  also  present  when  judgment  was  pronounced. 

The  errors  assigned  on  the  record  are  — /'//'s^,  that  the  ver- 
dict was  rendered  in  the  absence  of  the  accused  and  his  coun- 
sel. The  judges  of  the  court  certified  in  the  return  to  the  writ 
of  certiorari  that  the  judges  do  not  remember  whether  the 
accused  or  his  counsel  was  present  when  the  verdict  was  ren- 
dered,  and  that  they  took  no  means  to  have  the  accused  or  his 

i  See  note. 


w^. 


JACKSON  V.  STATE. 


81 


counsel  present  when  the  verdict  was  rendered,  other  than 
"by  keeping  tlie  court  open  so  that  they  mijjht  '.-.ave  been 
present  when  said  verdict  was  rendered  if  they  haa  chosen  to 
be."  The  accused  was  still  out  on  bail  when  the  verdict  was 
renc-ered.  The  condition  of  the  recognizance  of  bail  was  that 
he  should  appear  before  the  court  from  day  to  day,  and  not 
depart  the  court  without  leave.  The  absence  of  the  accused  at 
that  juncture  was  a  breach  of  the  condition  of  his  recogni- 
zance, and  he  might  have  been  called  and  a  forfeiture  entered. 
At  common  law,  in  felony  or  treason,  the  verdict  must  be 
given  in  open  court,  and  no  privy  verdict  could  be  given  (2 
Hale,  300),  or,  as  was  said  by  Sir  Edward  Coke,  in  criminal 
cases  of  life  or  member  the  jury  can  give  no  privy  verdict,  but 
they  must  give  it  openly  in  court  (Co.  Litt,,  227b).  Rex  v. 
LcKhhujhain,  T.  R;iym.,  103,  is  the  leading  case  on  the  subject. 
The  objection  iu  that  case  \vas  that  to  give  a  privy  verdict  in 
any  cririinal  case  was  Cf)nti';u'y  to  Co.  Litt.,  227i.  To  this  the 
court  answered:  "It  is  intended  that  no  privy  verdict  can  be 
given  in  criminal  cases  which  concern  life,  as  felony,  because 
the  jury  are  commanded  to  look  upon  the  prisoner  when  they 
give  their  verdict,  and  so  the  prisoner  is  to  be  there  present  at 
the  same  time."  ^[r.  Chitty  states  the  rule  to  be  that  in  all 
cases  of  felony  and  treason  the  verdict  must  be  delivered  in 
the  presence  of  the  defendant  in  open  court,  and  cannot  be 
privily  given  or  pi-omul^ated  in  his  absence;  and  in  all  cases 
where  the  jury  are  commanded  to  "  look  on  him,"  as  in  lar- 
ceny and  accusati(jns  subjecting  him  to  any  species  of  mutila- 
tion or  loss  of  limb,  the  same  rule  applies.  But  in  trials  for 
inferior  misdemeiuiors  a  privy  verdict  may  be  given,  and  there 
is  no  occasion  for  the  presence  of  the  defendant.  1  Chitt. 
Crim.  Law,  G3(i.  At  common  law  larceny  was  felony,  and,  if  the 
property  feloniously  stolen  exceeded  twelve  pence  in  value,  the 
punisliment  was  death.  4  Bl.  Comm.,  237.  The  rule  derived 
from  the  common-law  authorities  is  that  in  criminal  cases  the^ 
character  of  the  punishment  determines  the  power  of  the  jury 
to  render  a  privy  verdicc,  or,  what  is  the  same  thing,  a  verdict 
in  the  absence  of  ilie  defendant;  and  the  circumstance  that 
takes  away  such  power  is  that  the  case  is  one  involving  life  or 
mem!)er.  Co.  Litt.,  227J;  4  Hawk.  P.  C,  489;  4  Bl.  Comm., 
3G0;  10  Bac.  Abr.,  308,  title  "Verdict,"  B.  An  assault  with 
Vol  VII -6 


82 


AMERICAN  CRIMINAL  REPORTS, 


ni 


ip>- 


intent  to  commit  murder  was  not  at  common  law  a  felony.  In 
the  earliest  ages  of  our  law  (says  Mr.  East),  it  seems  to  have 
been  considered  that  the  bare  attempt  to  commit  murder  was 
felony;  but  that  idea  was  soon  exploded,  though  the  attempt 
is  punishable  as  a  high  misdemeanor  at  common  law.  1  East, 
P.  C,  411;  Bacoti'a  Case,  1  Lev.,  146;  Com.  v.  Barlotv,4:  Mass., 
439;  2  Bish.  Crira.  Law,  §§50,  743;  2  Whart.  Crim.  Law, 
§  1287. 

The  Criminal  Code  of  this  state  wholly  ignores  the  distinc- 
tion between  felonies  and  misdemeanors.  Statutory  offenses, 
if  designated  at  all,  are  called  in  the  crimes  act  eitlici'  misde- 
meanors or  high  misdemeanors.  Rev.,  p.  22fi.  Assault  with 
intent  to  commit  murder — the  offense  of  which  the  accused 
was  convicted  —  is  styled  a  misdemeanor,  punishable  by  im- 
prisonment at  hard  labor  not  exceeding  ten  years,  or  by  a  fine 
not  exceeding  $1,000,  or  both.  Rev.,  p.  241.  §  78.  The 
offense  was  a  misdemeanor  at  common  law,  and  retains  that 
character  in  the  statute,  and  is  punishitble,  as  at  common  law, 
by  fine  and  imprisonment.  It  is  sucli  an  offense  us  neither  in 
species,  nor  in  the  character  of  the  punislimcnt,  required  the 
presence  of  the  accused  when  the  verdict  wns  rendered,  as 
essential  to  the  legality  of  the  verdict. 

Independent  of  these  considerations,  by  a  long  course  of 
procedure  tlie  practice  has  become  settled  in  tliis  state  to  re- 
ceive the  verdict  of  the  jury  in  all  criminal  cases,  except  capi- 
tal cases,  without  the  presence  of  the  accused.  Such  a  power 
in  the  court  is  essential  to  the  due  administration  of  justice, 
especially  when  the  accused  is  out  on  bail.  By  the  constitution 
of  this  state,  the  accused,  before  conviction,  is  entitled  to  be 
admitted  to  bail  in  all  cases,  except  for  capital  offenses,  when 
the  proof  is  evident  or  the  presumption  great,  and  excessive 
bail  is  interdicted.  Const.,  art.  1,  pp.  10,  15.  If  the  verdict 
of  guilty  taken  in  the  absence  of  the  defendant  was  hold  to 
be  erroneous,  it  would  practically  be  in  the  power  of  an  ac- 
cused out  on  bail  to  evade  the  just  punishment  of  his  crime, 
and  commute  by  the  payment  of  the  sum  for  which  he  was 
bailed.  In  this  case  the  sentence  was  to  imprisonment  in  the 
state  prison  for  one  year,  and  a  fine  of  81,000,  besides  cost  of 
prosecution.  The  accused  was  out  on  bail  in  the  sum  of  $200. 
The  observations  of  the  learned  judge  who  delivered  the 


w 


JACKSON  t?.  STATE. 


83 


opinion  of  the  court  in  Lynch  v.  Com.,  88  Pa.  St.,  189.  in  which 
a  conviction  for  larceny  on  the  verdict  of  a  jury  taken  in  the 
absence  of  the  defendant,  who  was  out  on  bail,  was  sustained, 
are  quite  apposite  to  this  condition  of  affairs. 

Second.  The  jury,  after  it  retired  to  consider  its  verdict,  re- 
turned and  mtulo  request  for  "  further  instructions  in  regard 
to  the  intention  of  the  defendant  in  firing  the  gun  at  John 
Schanz."  The  court  thereupon  informed  the  jury  "that  the 
court  had  already  charged  fully  on  that  subject,  and  declined 
to  charge  anything  further  than  they  had  already  charged," 

In  answer  to  the  certiorari  in  this  case  the  judges  certify 
that  they  do  not  remember  whether  the  accused  or  his  counsel 
was  present  when  the  jury  came  in,  but  they  certify  that  when 
the  charge  was  given  to  the  jury,  before  the  jury  retired  to 
consider  of  their  verdict,  the  accused  and  his  counsel  were 
present,  and  took  no  exceptions  to  the  charge.  The  charge 
does  not  appear  in  the  case,  nor  do  an}' exceptions  to  it  appear 
on  the  record.  For  aught  that  appears  there,  the  charge  was 
so  full  and  exi)licit  as  to  render  further  instructions  superflu- 
ous. ITnde.  such  circumstances  the  court  was  not  required  to 
give  the  jury  further  instructions. 

We  find  no  error  on  the  record,  and  the  judgment  should  be 
affirmed. 


Note. —  Intent. —  To  constitute  an  assault  with  intent  to  murder  the 
spcciflc  intent  must  exist;  and  it  does  not  exist  unless,  if  death  had  en- 
sued, tlie  consummated  offense  would  have  been  murder.  Smith  v.  State, 
83  Ala.,  20. 

Manslaughter  —  Sudden  passion. —  A  sudden  transport  of  passion,  caused 
by  adequate  provocation,  if  it  suspends  the  exercise  of  judgment  and 
dominates  volition,  so  as  to  exclude  premeditation  and  a  previously  formed 
design,  is  suflicient  to  reduce  the  killing  to  manslaughter,  although  it  does 
not  "  entirely  dethrone  reason."    Id. 


84 


AMERICAN  CRIMINAL  REPORTS. 


State  v.  Buatjdet. 

(58  Conn.,  586.) 

Assault  with  intent  to  murder:    Evidence -Timata  made  by  a  third 

person  inadmissible. 

1.  Upon  a  trial  of  an  assault  on  A.  with  intent  to  murder,  in  which  the 

defense  was  that  B.  and  not  the  prisoner  made  the  assault,  evidence 
of  threats  of  B.  against  A.  was  held  inadmissible. 

2.  It  is  also  inadmissible  to  show  flight  of  a  third  person  or  confession  of 

guilt. 

Information  for  an  assault  with  intent  to  murder. 

K  Zacher  and  S.  W.  H.  Andrexos,  for  appellant. 
T.  E.  Doolittle,  state's  attorney,  for  the  state. 

LooMis.  J.  The  prisoner  was  tried  upon  an  information  for 
an  assault  upon  one  Dr.  Walter  Zink  with  intent  to  murder. 
He  was  at  the  time  in  Dr.  Zink's  omploy,  and  an  inniiite  of 
the  family;  the  other  members  being  the  wife  of  Zmk,  who 
was  very  deaf,  a  daughter  aged  fifteen,  and  a  little  son  much 
younger.  The  state  claimed  to  have  proved  that  the  jirisoner 
was  present  in  the  room  with  Dr.  Zink  a  short  time  before  the 
commission  of  the  offense,  and  was  found  in  the  house  sh(jrtly 
after.  The  assault  took  i)lace  in  the  dining-room  of  the  house, 
a  few  minutes  after  11  o'clock  in  the  evening.  Dr.  Zink,  at 
the  time,  had  upon  his  person  two  rolls  of  bills,  one  of  §5(> 
and  the  other  of  ^200.  During  the  day-time,  preceding  the 
assault,  he  had  received  $1G  or  $18  from  one  Robert  Dough- 
erty, who  then  had  opportunity  to  see  one  of  the  rolls  of  bills. 

On  the  south  side  of  Zink's  house,  leading  from  the  street  to 
the  barn,  is  a  drive-way,  and  on  the  easterly  side  is  a  fence  and 
gale  leading  from  the  drive-wa}'  to  an  orchard  on  the  south. 
That  part  of  the  drive-way  opposite  the  gate  consists  of  soft 
and  sandy  soil.  Yery  soon  after  the  assault,  and  before  any 
other  ])eisons  arrived,  the  prisoner  and  Mrs.  Zink  passed  out 
of  the  house,  and  with  bare  feet  went  over  the  drive-way,  and 
through  the  gate,  into  the  orchard,  the  prisoner  going  a  few 
feet  ahead.  At  a  place  about  fifteen  feet  beyond  the  gate, 
Mrs.  Zink  discovered  on  the  ground  a  roll  of  bills  consisting 
of  $200.    She  also  picked  up  a  watch  beside  the  drive- way, 


STATE  V.  BEAUDET. 


8ft 


and  some  bills  in  the  dining-room,  and  the  prisoner  also  picked 
up  some  silver  money  there.  They  both  returned  into  the 
house,  and  made  no  further  search.  Early  the  next  morning 
the  impression  of  bare  feet  of  human  beings  was  noticed  in 
the  sand  of  the  drive-way  leading  to  and  from  the  gate  into 
the  orchard.  They  were  examined  by  the  coroner  of  the 
county  and  by  others;  and,  at  the  coroner's  suggestion,  Dough- 
erty and  the  prisoner  made  impressions  on  the  sand  with  their 
bare  feet,  which  were  measured  and  compared  with  those  on 
the  drive- way.  The  latter  indicated  that  the  second  toe  was 
somewhat  longer  than  the  first.  The  experimental  impressions 
made  by  Dougherty  were  nearly  the  same  as  those  found  on 
the  drive-way,  while  tiiosc  made  by  the  prisoner  were  a  quarter 
of  an  inch  less  in  length,  and  a  little  less  in  width,  but  no  other 
difference  was  mentioned.  At  about  10  o'clock  on  the  evening 
of  the  assault,  Dougherty  was  in  the  Linsley  House,  situated 
from  twelve  to  fifteen  hundred  feet  distant,  and  remained 
their  until  half-past  10,  when  he  left,  and  was  last  seen  near 
there  on  the  railroad  track,  very  drunk,  staggering,  and  on  the 
road  to  his  house.  In  addition  to  the  other  circumstances,  the 
state  relied  upon  the  confession  of  his  guilt  by  the  accused,  as 
shown  by  the  testimony  of  two  witnesses. 

Upon  the  trial  a  witness  was  asked  "  whether  Dougherty, 
upon  that  night,  in  that  saloon,  between  the  hours  of  half-past 
9  and  half-past  10,  made  any  threats  against  Dr.  Zink."  And 
another  witness  was  asked  "whether,  on  the  day  before  the 
assault,  Dougherty,  in  his  hearing,  made  any  threats  against 
Dr.  Zink."  Both  questions  were  excluded  by  the  court,  and 
exceptions  taken  by  the  defendant's  counsel;  and  this  ruling 
presents  the  only  question  for  review. 

At  the  outset  it  should  be  noticed  that  the  offer  was  simply' 
to  prove  the  threats  of  Dougherty  against  Dr.  Zink.  Any 
threats  of  any  kind  would  have  filled  the  offer.  What  act 
Dougherty  threatened  to  do,  or  when  or  how  he  was  to  do  it, 
was  not  indicated;  nor  was  the  offered  evidence  accompanied 
with  any  claim  or  even  a  hint  that  it  could  or  would  be  supple- 
mented by  further  testimony.  Indeed,  it  nowhere  appears  in 
the  record  that  it  was  even  claimed  in  behalf  of  the  prisoner 
that  Dougherty  committed  the  offense,  or  that  any  evidence 
admitted  or  to  be  offered  would  show  it.    The  threats,  what- 


^^m\ 


86 


AMERICAN  CRIMINAL  BEPOPTS, 


ever  they  were,  so  far  as  appears,  were  entirely  isolated  from 
the  transaction  in  question,  and  tended  in  no  way  to  eluciilato 
or  give  character  to  any  material  act  or  fact  in  the  case.  They 
could  not,  therefore,  have  been  received  as  parts  of  the  ns 
ye«i(je.  As  to  the  threats  in  the  saloon,  the  only  thing  it  would 
seem  which  they  characterized  was  the  drunken  conditii)n  of 
the  one  who  uttered  thein. 

We  will  first  consider  whether  the  exclusion  of  the  evidence 
injuriously  affected  the  accused.  If  it  could  not  properly  have 
changed  the  result,  then  he  was  not  a«?srieved  by  the  ruling. 
In  this  part  of  the  discussion  we  assume,  as  the  record  justifies 
us  in  assuming,  that  no  further  evidence  affecting  Dougherty 
was  to  be  offered.  If,  then,  we  supply  the  additional  fact  of 
threats  made,  and  assume,  for  the  benefit  of  the  accused,  be- 
yond what  the  record  states,  that  they  were  threats  of  personal 
violence,  could  they  by  any  possibility  have  shown  Dougherty 
guilty  of  the  attempted  murder,  so  as  to  relievo  the  accused; 
Would  the  offered  evidence  have  rendered  any  of  the  circum- 
stances relied  upon  by  the  state  inconsistent  with  the  guilt  of 
the  accused,  or  consistent  with  his  innocence?  Would  it  have 
accounted  for  the  money  found  in  the  very  path  the  accused 
took  that  night,  soon  after  the  offense  was  committed,  and  im- 
mediately after  it  was  discovered,  as  the  state  claimed,  that 
Dr.  Zink  had  recovered  his  consciousness?  Could  it  jmssibly 
have  tended  to  show  that  the  accused  had  no  peculiar  motive 
hastily  to  rid  himself  of  the  fruits  of  the  c/ime  which  Dough- 
erty might  not  also  have  had?  It  does  not  seem  to  us  possible 
that  the  proposed  evidence  could  have  impaired  in  the  least 
the  circumstantial  evidence  against  the  accused;  and  surely 
no  one  would  claim  that  it  could  affect  the  evidence  derived 
from  the  confessions  of  the  prisoner. 

In  regard  to  the  evidence  furnished  by  the  coroner's  experi- 
ment with  the  tracks,  it  may  not  be  amiss  to  remark  that  its 
only  possible  bearing  would  be  to  furnish  presumptive  evi- 
dence that  Dougherty,  and  not  the  accused,  went  there  that 
night  soon  after  the  offense  was  committed;  but  there  seems 
to  have  been  direct  evidence  to  show  that  the  accused  went 
over  tb  drive-way  in  his  bare  feet,  as  did  Mrs.  Zink  also,  and 
it  is  pretty  certain  that  they  made  impressions  on  the  soft  and 
yielding  sand  opposite  the  gate;  and  the  difference  in  size 


STATE  V.  BEAUDET. 


87 


which  the  measurements  indicated  could  be  readily  explained 
by  the  fact  that  in  one  case  the  impressions  were  made  while 
standin«?  still,  and  in  the  other  while  moving  rapidly  forward. 

lUit  the  counsel  for  the  accused  in  substance  claimed  before 
this  court  that  the  state  relied  upon  opportunity  to  commit  the 
crime  in  the  absence  of  any  motive  attributed  to  the  accused, 
and  that  the  excluded  evidence  would  have  shown  both  motive 
and  opportunity  in  another,  and  therefore,  if  received,  would 
have  weakened  the  case  foi  tiie  state.  Waiving  anv  m  iticism 
on  this  imperfect  latement  of  the  claims  of  \.\j  state,  we  sug- 
gest thjit  the  threats  had  no  bearing  at  all  upon  the  question 
of  opportunity.  The  opportunity  of  the  accused,  though  ob- 
viously better  than  that  of  any  one  else  save  Mrs.  Zink,  was 
far  from  being  exclusive.  It  was  quite  ))ossible  for  Dough- 
erty or  others  to  bo  there.  Now,  as  to  the  motive  relied  upon 
by  the  state,  it  was  not  hatred  or  revenge,  but  love  of  money. 
We  should  not  expect  a  person  impelled  by  such  a  motive  to 
utter  threats  at  all;  he  would  go  stealthily  to  assail  his  vic- 
tim. In  this  point  of  view,  the  threats  uttered  by  Dougherty, 
if  they  might  otherwise  have  indicated  ill-will  on  his  part, 
could  not  liave  affected  the  motive  that  moved  the  accused,  or 
have  weakened  the  evidence  relied  upon  to  connect  him  with 
the  crime. 

But  we  will  forbear  further  discussion  of  this  aspect  of  the 
case,  as  it  is  not  necessary  to  place  our  refusal  to  grant  a  new 
trial  on  this  ground,  and  proceed  to  consider  the  precise  ques- 
tion raised  by  the  appeal,  namely,  were  the  threats  of  Dough- 
erty admissible  at  all,  under  the  circumstances  stated?  and,  if 
so,  upon  v/hat  principle?  The  only  plausible  ground  for  the 
admission  is  Unit  as  the  accused  might  exculpate  himself  by 
showing  that  another  v.'as  the  guilty  party,  so  an}'  item  of  evi- 
dence which  would  have  been  admissible  had  such  other  per- 
son been  on  trial  should  be  received  in  his  favor.  "We  concede 
the  premises,  but  not  the  conclusion ;  for  under  the  rules  of 
evidence  it  makes  a  vast  difference  whether  declarations  of- 
fered in  evidence  come  from  the  party  on  trial  or  not.  In  the 
one  case  they  are  universally  admitted,  unless  irrelevant  or 
self-serving.  In  the  other  they  are  by  general  rule  excluded, 
.subject  to  a  few  well-marked  exceptions.  In  2  Best,  Ev., 
<5  500,  under  the  head  of  "Res  Inter  Alios  Acta,"  it  is  said: 


88 


AMERICAN  CRIMINAL  REPORTS. 


"  No  person  is  to  be  affected  by  the  words  or  acts  of  others, 
unless  he  is  connected  with  them,  either  personal!}'  or  by  those 
whom  he  represents,  or  by  whom  he  is  represented."  Were 
this  a  civil  suit  in  favor  of  Dr.  Zi.ik  against  tht  same  defend- 
ant, for  the  same  assault,  would  it  occur  to  any  one  to  offer 
the  declarations  of  Dougherty  that  he  intended  to  do  the  act, 
or  even  that  he  had  done  it?  Is  it  any  the  less  a  matter  inter 
alios  when  the  state  is  a  party?  In  either  case  it  would  be  a 
legitimate  defense  that  another  person  had  committed  the 
deed;  but  in  neither  would  his  threats  alone  be  admissible. 

Now,  to  illustrate  some  of  the  reasons  for  such  distinction, 
we  will  add  that  where  the  threats  of  the  one  on  trial  are  ad- 
duced against  him,  he  is  always  present  in  court  to  deny  or 
qualify  them;  to  show  tiiat  the  witness  misunderstood,  mis- 
remembered  or  was  false;  or  to  explain  how  the  threats  were 
in  a  transient  fit  of  anger,  or  from  mere  bravado,  or  for  in- 
timidation; but  where  the  threat  of  a  third  person  is  intro- 
duced he  may  be  far  away,  and  no  one  can  explain  its  real 
meaning;  and,  besides,  the  very  introduction  of  such  collat- 
eral issue  serves  greatly  to  confuse  and  mislead  the  triers,  and 
justice  may  thereby  be  defeated.    And  if  the  jury  were  to 
pass  on  the  collateral  issue,  it  would  have  no  other  effect  than 
to  acquit  the  one  on  trial.    The  third  person  could  be  in  no. 
wise  legally  affected.    If  he  should  alttrwards  be  indicted  and 
put  on  trial  for  the  same  offense,  he  would  still  be  at  full  lib- 
erty to  show  his  innocence,  notwithstanding  the  fact  that  the 
former  finding  of  his  guilt  caused  another's  acquittal.     And 
so,  if  he  had  previously  been  tried  and  acquitted,  that  fact 
could  in  nowise  affect  the  admissibility  of  his  declarations 
when  afterwards  another  person  is  on  trial  for  tho  same  of- 
fense, for  the  latter  would  be  no  party  to  the  verdict.     It  is 
therefore  going  far  enough  in  favor  of  the  accused  to  allow 
him  to  exculpate  himself  by  showing  the  fact  of  another's 
guilt,  by  some  appropriate  evidence  directly  connecting  that 
person  with  the  corptts  delicti.     The  anitmtn  of  a  third  person 
is  no  defense,  and,  by  itself,  it  cannot  prove  the  ultimate  fact 
which  is  a  defense.     Even  as  to  the  threats  of  the  person 
on  trial,  Wharton,  in  his  Criminal  Evidence  (8th  ed.),  §  750. 
says:  They  "are  admissible  in  evidence,  not  because  they  give 
rise  to  a  presumption  of  law  as  to  guilt,  which  they  do  not,  but 


STATE  r.  BEAUDET. 


because  from  them,  in  connection  with  other  circumstances 
and  on  proof  of  the  corpus  delicti,  guilt  may  be  logically  in- 
ferred." Then  follows  a  list  of  informative  suppositions,  de- 
signed to  show  that  because  one  threatens  to  commit  a  crime 
it  does  not  follow  that  such  intention  really  existed  in  his 
mind;  much  less  does  it  show  the  actual  commission  of  the 
crime.  Nearly  all  treatises  on  evidence  contain  similar  cau- 
tions. In  3  Benth.  Rat.  Jud.  Ev.,  75,  it  is  said  that "  declarations 
of  an  intention  to  commit  a  crime  are  no  less  susceptible  of 
being  false  than  declarations  of  the  opposite  cast,  namely,  dec- 
larations of  an  intention  to  abstain  from  the  commission  of  that 
or  a  similar  crime." 

We  insist,  therefore,  that  it  is  reasonable  to  exclude  the 
mere  disconnected  threats  and  declarations  of  third  persons. 
If  they  are  parts  of  the  res  (jestie,  or  form  links  in  a  chain  of 
evidence  connecting  with  the  crime  itself,  they  may  doubtless 
be  received.  If  the  threats  were  to  commit  a  crime  in  a  par- 
ticular mode,  and  it  was  in  fact  so  committed,  perhaps  they 
would  then  be  admissible.  But  in  the  case  under  consideration 
there  is  nothing  at  i\\\  to  show  that  the  thing  threatened  had 
any  sort  of  resemblance  to  the  thing  done,  either  in  kind  or 
mode. 

But  if  we  suspend  our  discussion  of  the  principles  which 
ought  to  be  applied  to  the  question,  and  pass  to  the  considera- 
tion of  the  decided  cases  as  found  in  other  jurisdictions,  we 
shall  lind  the  ruling  of  the  court  vindicated,  not  simply  by  the 
preponderance  of  judicial  authority,  but  by  absolute  unanimity, 
save  in  one  case  in  Louisiana,  which,  for  reasons  to  be  sug- 
gested hereafter,  can  have  little  weight  in  the  opposing  scale. 
We  will  first  cite  cases  precisely  analogous  to  the  case  at  bar, 
in  that  threats  of  third  persons,  prior  to  the  commission  of  the 
crime,  were  offered  in  evidence  by  the  accused  and  excluded; 
but  the  threats,  instead  of  being  vague  and  indefinite,  as  in  the 
case  at  bar,  were  generally  very  specilic  and  sign i (leant. 

The  case  of  State  v.  Davis,  77  N.  C,  483,  was  an  indictment 
for  murder.  On  the  trial  the  r>iMs.)ner  proposed  to  prove  by 
one  Peck  "that  Geo.  Nicks  had  malice  towards  the  deceased, 
and  had  a  motive  to  take  his  life,  and  opportunity  to  do  so, 
and  had  threatened  to  do  so  before  the  court."  (2)  He  further 
offered  to  prove  by  one  Rice  "  that  one  Peck  took  a  gun,  and 


!^;| 
i 


90 


AMERICAN  CRIMINAL  REPORTS. 


went  in  the  direction  of  the  house  of  the  deceased  some  time 
before  the  deceased  was  killed."     The  court  says: 

"Both  e.xceptions  are  untenable,  and  have  been  repeatedly 
so  held  by  this  court, —  the  first  because  they  are  declarations 
of  a  third  party  and  are  res  inter  alios  acta,  and  have  no  legal 
tendency  to  establish  the  innocence  of  the  prisoner;  and  the 
second  for  the  same  and  additional  reason  that  the  time  is  too 
vaguely  and  indefinitely  set  forth.  .  .  .  Such  evidence  is 
inadmissible,  because  it  does  not  tend  to  establish  the  corpus 
delicti.  Unquestionably  it  would  have  been  competent  to 
prove  that  a  third  party  killed  the  deceased,  and  not  the  pris- 
oner. But  this  could  only  have  been  done  by  proof  connect- 
ing Peck  with  the  fact;  that  is,  with  the  perpetration  of  some 
deed  entering  into  the  crime  itself.  Direct  evidence  connect- 
ing Peck  with  the  corpus  delicti  would  have  been  admissible. 
After  proof  of  the  res  gcsto}  constituting  Peck's  alleged  guilt 
had  been  given,  it  might  be  that  the  evidence  which  was  of- 
fered and  excluded  in  this  case  would  have  been  competent  in 
confirmation  of  the  direct  testimony  connecting  him  with  the 
fact  of  killing.  No  such  direct  testimony  was  otfered  here. 
It  is  unnecessary  to  elaborate,  as  the  (|uestions  of  evidence  here 
made  have  been  fully  discussi^d  and  decided  bv  this  court  in 
many  cases.  It  is  only  necessary  to  refer  to  the  principal 
ones:  State  v.  Bishop,  73  N.  C,  44;  State  v.  3Iai/,  4  Dev., 
328;  State  v.  Duncan,  G  Ired.,  236;  State  v.  White,  68  X.  C, 
158." 

These  cases  are  all  pertinent,  and  supported  by  similar  and 
some  additional  reasons.  We  will  not  take  the  time  and  space 
necessary  for  a  particular  statement  of  the  evidence  offered, 
and  the  reasoning  of  the  court  sustaining  its  exclusion.  To 
the  above  list  we  will  add  the  case  of  State  v.  IJaynes,  71 
K  C,  79. 

In  Crookham  v.  State,  5  W.  Va.,  510,  it  was  held  that  it  was 
no  error  to  exclude  testimony  otfered  by  the  prisoner,  to  the 
effect  that  another  and  a  different  person  from  himself  had 
made  threats  to  kill  the  deceased  just  before  the  commission 
of  the  offense  with  which  he  was  charged ;  and  that  immedi- 
ately after  the  offense  such  other  person  left  the  country,  and 
has  not  since  been  heard  from. 

In  Boothe  v.  State,  4  Tex.  Ct.  App.,  202,  and  in  Walker  v. 


^ 


STATE  V.  BEAUDET. 


91 


/State,  6  Tex.  Ct.  App.,  576,  both  being  indictments  for  mur- 
der, it  was  held  not  competent  for  the  accused  to  prove  that,  a 
very  short  time  before  the  homicide,  a  person  other  than  the 
accuseil  made  threats  to  take  the  life  of  the  deceased.  In  the 
last  case  the  court  supported  the  ruling  by  saying: 

"  The  issue  of  the  trial  was  the  guilt  or  innocence  of  the  de- 
fendant on  trial.  Evidence  is  admissible  if  it  tends  to  prove 
the  issue,  or  constitutes  a  link  in  the  chain  of  proof;  and  this 
seems  to  be  the  limit,  and  excludes  all  evidence  of  collateral 
facts,  or  those  which  are  incapable  of  affording  any  reasonable 
presumption  or  inference  as  to  the  principal  fact  or  matter 
in  dispute,  and  for  the  good  reason  stated  for  the  rule  by  Mr. 
Greenleaf,  that  such  evidence  tends  to  draw  away  the  minds 
of  the  jury  from  the  point  in  issue,  and  to  excite  prejudice  and 
mislead  them.     1  Greenl.  Ev.,  ^§  51,  52."    . 

AV^e  may  add  that  the  doctrine  of  these  cases  has  received 
the  recent  approval  of  jurists  and  text-writers  of  high  au- 
thority. Wharton,  in  his  treatise  on  Criminal  Evidence  (sec. 
225),  says:  "Evidence  of  threats  by  other  persons  is  inad- 
missible." The  same  doctrine  is  found  in  Whart.  Ilom.,  §693. 
In  2  Bish.  Crim.  Troc,  §  623,  it  is  said : 

"  The  declarations  of  the  deceased,  as  of  any  third  person, 
when  not  of  the  res  ycstce  or  dying  declarations,  or  communi- 
cated to  the  defendant  so  as  possibly  to  influence  his  conduct, 
are  excluded  by  rules  which  have  been  supposed  to  promote 
justice  on  the  whole, —  at  all  events,  which  have  become  parts 
of  the  common  law,  not  within  the  discretion  of  the  courts  to 
set  aside.     Hence  tliey  are  not  admissible." 

And,  again,  in  the  first  volume  of  the  sams  treatise  (sec. 
1248)  it  is  said:  "In  general,  what  one  says,  as,  for  example, 
that  he  committed  the  crime  in  question,  will  not  be  admitted 
for  or  against  another." 

In  further  support  of  the  ruling  complained  of,  we  adduce  a 
few  of  the  numerous  decisions  holding  that  admissions  of  third 
persons  that  they,  and  not  the  accused,  are  guilty  of  the 
crime  charged,  are  to  be  excluded : 

In  the  early  case  of  Coin.  v.  ChahhocJc,  1  Mass.,  143,  the  pris- 
oner was  tried  on  an  indictment  lor  breaking  into  a  house,  and 
also  for  stealing  goods  therein.  The  defendant  offered  to 
prove  by  a  witness  present  that  another  person  had  owned  to 


fc-»l 


92 


AMERICAN  CRIMINAL  REPORTS. 


the  witness  that  he  had  stolen  some  of  the  articles  mentioned 
in  the  indictment.  The  court  held  that  the  evidence  could 
not  be  admitted,  saying:  "It  was  no  more  than  hearsay.  If 
a  person  other  than  the  defendant  had  stolen  the  goods,  it 
was  undoubtedly  competent  for  the  defendant  to  prove  the 
fact  in  exculpation  of  himself,  but  not  by  the  mode  of  proof 
nov«r  offered." 

In  Smith  V.  Slate,  9  Ala.,  990,  the  prisoner  (a  slave)  Avas  in- 
dicted for  the  murder  of  one  Edmund  (also  a  slave).  All  the 
evidence  was  circumstantial.  Sam,  another  slave,  had  been 
tried  and  acquitted  for  the  same  murder  previously.  On  the 
trial  it  seems  there  was  a  strong  array  of  circumstantial  evi- 
dence against  him ;  but  Sam  stated  that  a  few  days  after  the 
murder  Smith  told  him  that  he  killed  Edmund.  The  partic- 
ulars of  the  statement  we  omit.  But  on  the  trial  of  Smith, 
evidence  was  otfered  in  his  behalf  that  Sam,  during  his  own 
trial,  had  become  alarmed,  and  had  told  the  witness  that  he 
had  wrongfully  accused  Smith  of  the  murder  of  Edmund,  and 
he  did  not  wish  to  die  with  a  lie  in  his  mouth,  etc.  The  counsel 
for  the  accused  claimed  that  it  was  competent  for  the  prisoner, 
under  the  circumstances,  to  show  that  another  committed  the 
murder;  and  that  in  this  view  the  declarations  of  Sam  should 
have  been  received,  as  they  tended  to  inculpate  him,  as  well 
as  to  show  tliat  the  prisoner  was  not  the  offender.  Ormond, 
J.,  in  delivering  the  opinion  of  the  court,  said : 

"Conceding  the  true  meaning  of  these  declarations  of  Sam 
in  jail  to  be  an  admission  of  his  own  guilt,  and  that  he  had 
killed  Edmund  himself,  it  does  not  vary  the  case  in  the  slight- 
est degree.  .  .  .  The  declaration  of  Sam  was  not  an  act 
within  the  meaning  of  the  doctrine  I  have  been  discussing. 
.  .  .  To  give  effect  to  the  mere  declarations  of  third  per- 
sons would  be  a  most  alarming  innovation  upon  the  criminal 
law.  Such  a  declaration  would  not  be  obligatory  on  the  per- 
son making  it.  He  might  afterwards  demonstrate  its  falsity 
when  attempted  to  be  used  against  him.  Such  testimony  may 
be  a  mere  contrivance  to  procure  the  acquittal  of  the  ac- 
cused." 

In  West  V.  State,  76  Ala.,  98,  the  question  was  again  before 
the  highest  court  of  the  same  state,  and  it  was  held  "that  the 
admission  of  a  third  person  tliat  he  committed  the  offense  witli 


STATE  V.  BEAUDET. 


93 


which  the  accused  was  charged,  not  made  under  oath,  though 
on  his  death-bed,  is  mere  hearsay,  and  is  not  admissible  as  evi- 
dence for  the  accused." 

In  Sharp  v.  State,  6  Tex.  Ct.  App.,  650,  it  was  held  no  error 
to  refuse  to  allow  a  witness  for  the  defense  to  testify  that  cer- 
tain other  men  confessed  that  they  commited  the  crime. 

A  similar  ruling  was  also  sustained  mlihea  v.  State,  10  Yerg. 
(Tenn.),  258. 

Greenfield  v.  People,  85  N.  Y,,  75,  was  an  indictment  for 
murder.  Upon  the  trial  the  accused  offered  the  letter  of  one 
Koyal  Kellogg  to  his  brother,  in  which,  after  alluding  to  the 
murder, he  said  among  other  things:  "If  they  want  me  they 
can  come  and  get  me;"  and,  in  connection  with  the  above  and 
certain  anonymous  letters  containing  confessions,  they  offered 
the  declarations  of  Kellogg  «nd  his  brotlier  and  another  per- 
son, made  within  an  hour  after  the  murder,  and  at  a  place 
three-fourths  of  a  mile  distant.  Tlie  witness,  being  awakened 
by  the  barking  of  a  dog  at  about  4  o'clock  in  the  morning,  on 
looking  out  of  the  window  reco<jnized  the  two  Kello<ri:s  and 

O  O  CO 

one  Taplin,  and  they  had  a  gun  and  a  bag,  etc.  The  witness, 
after  giving  in  detail  their  suspicious  actions  at  this  place, 
offered  to  prove  that  Taplin  said  to  the  Kollo^gs  on  that  occa- 
sion before  they  left:  "You  were  damned  fools  to  do  it; "  and 
that  one  of  the  Kelloggs  replied,  "  If  we  had  not  done  it  we 
should  all  have  been  hung."  Miller,  J.,  in  delivering  the  opin- 
ion of  the  court,  said : 

"Even  if  this  letter  could  be  regarded  as  a  confession  of 
Kellogg  that  he  committed  the  murder,  it  was  only  the  decla- 
ration of  a  third  party,  merely  hearsay  testimony,  and  upon  no 
rule  of  evidence  admissible.  If  such  declarations  were  com- 
petent upon  an}'  trial  for  homicide  they  would  tend  to  confuse 
the  jury,  and  to  divert  their  attention  from  the  real  issue. 
The  lott(M'  (lid  not  tend  to  establish  that  Kellogg  committed 
the  offense,  was  not  a  part  of  the  res  (jedoi,  and  in  no  sense 
relieved  the  ])risoner  from  the  charge  for  which  he  was  upon 
trial,  or  raised  any  presumption  that  Kellogg  was  the  guilty 
party.  Confessions  of  this  character  are  sometimes  made  to 
screen  offenders;  and  no  rule  is  better  established  than  that 
extrajudicial  statements  of  third  persons  are  inadmissible. 
Whart.  Ev.,  §  644;  Whart.  Crim.  Law,  §§  002,  084;  2  Best,  Ev., 


94 


AMERICAN  CRIMINAL  REPORTS. 


§§  559,  560,  563,  565,  578.  .  .  .  While  evidence  tending  to 
show  that  another  party  might  have  committed  the  crime 
would  be  admissible,  before  such  testimony  could  be  received 
there  must  be  such  proof  of  connection  with  it,  such  a  train 
of  facts  and  circumstances,  as  tend  clearly  to  point  out  some 
one  besides  the  prisoner  as  the  guilty  party.  Remote  acts,  dis- 
connected, and  outside  the  crime  itself,  cannot  be  separately 
proved  for  such  a  purjjose.  In  considering  the  question  we 
have  carefully  examined  the  numerous  authorities  cited  to  sus- 
tain the  position  that  the  evidence  was  competent,  and  none 
of  them  hold  that  under  such  circumstances  it  could  lawfully 
be  received;  and  it  was  neither  admissible  alone  nor  in  connec- 
tion with  the  letters  referred  to." 

In  Whart.  Crim.  Ev.,  §  225,  it  is  said: 

"  Extrajudicial  statements  of  third  persons  cannot  be  proved 
by  hearsay,  unless  such  statements  were  part  of  the  res  gestcB, 
or  made  by  deceased  persons  in  the  course  of  business,  or  as 
admissions  against  their  own  interest,  or  are  material  for  the 
purpose  of  determining  the  state  of  the  mind  of  a  party  who 
cannot  be  examined  in  court.  .  .  .  Hence,  on  an  indict- 
ment for  murder,  the  admissions  of  other  persons  that  they 
killed  the  deceased,  or  committed  the  crime  in  controversy, 
are  not  evidence;  and  evidence  of  threats  by  other  persons 
are  inadmissible.  .  .  .  On  an  indictment  for  larceny,  also, 
declarations  of  third  parties  that  they  committed  the  theft 
are  inadmissible." 

In  all  the  numerous  cases  we  have  examined,  where  threats 
of  third  persons  were  excluded,  there  was  no  dissenting  opinion 
in  any  instance;  and  after  most  diligent  search  wo  have  been 
able  to  find  but  one  case  which  furnishes  any  support  to  the 
claim  of  the  accused.  We  refer  to  that  of  State  v.  Johnson^ 
30  La.,  921.  where  the  state,  in  a  prosecution  for  murder  based 
entirely  on  circumstantial  evidence,  found  it  necessary  to  trace 
to  the  accused  a  motive  for  the  homicide  in  a  previous  quarrel 
with  the  deceased,  when  the  accused  while  in  liquor  uttered 
threats  against  the  deceased;  and  upon  cross-examination  the 
witness  for  the  state,  who  had  in  chief  testified  to  the  quar- 
relsome character  of  the  deceased,  and  to  the  threats  of  the 
accused,  was  asked  what  other  quarrels  the  deceased  had  be- 
sides that  with  the  accused,  a  few  days  prior  to  the  murder; 


s 


STATE  V.  BEAUDET. 


95 


and  the  trial  court  excluded  it.  The  court  of  review  cites  no 
authorities,  and  enters  into  no  discussion  of  the  question  upon 
principle,  but  simply  says  in  effect  that  although  it  was  of 
doubtful  admissibility,  yet  on  the  whole  they  will  give  the 
accused  the  benefit  of  a  new  trial.  But  even  this  case  can  be 
widely  distinguished  from  the  one  on  trial.  The  state  had  put 
in  issue  the  quarrelsome  character  of  the  deceased,  and  to  that 
extent  the  cross-examination  v/as  pertinent;  and  further,  the 
case  seemed  to  bo  controlled  by  the  question  whether  the  mo- 
tive arising  out  of  a  recent  quarrel  pointed  exclusively  to  the 
accused.  The  fact  drawn  out  on  cross-e-xamination  might 
show  that  it  did  not,  and  therefore  there  was  some  force  in 
the  claim  tliat  it  was  admissible,  in  order  to  weaken  that  evi- 
dence by  showing  that  others  were  also  included  and  shared 
tlie  same  motive.  But  in  the  case  at  bar  we  have  already 
called  attention  to  the  fact  that  the  motive  which  moved 
Bcaudot  was  cntireh'  different  from  that  attributed  to  Dough- 
erty; and  hence  the  evidence  as  to  the  latter  in  no  way  im- 
paired that  applicable  to  the  former. 

In  regard  to  the  admissibility  of  the  confessions  of  guilt  by 
third  parties  in  criminal  trials,  there  is  absolute  unanimity  in  the 
(iocisions,  so  far  as  we  have  been  able  to  ascertain.  In  Smith 
i\  St(iU\  supra,  (Joldtlnvaite,  J.,  dissents  from  the  majority 
opinion;  but  in  so  doing  he  expressly  concedes  "that  the  con- 
T'  i^sion  of  ii  third  person  of  his  guilt  is  not  evidence  in  favor 
C't"  iuiotlier,  when  standing  alone,  unaided  by  other  facts  and 
circumstiuicGS."  Vet  he  contends  that  it  is  so  whenever  the 
party  confessing  is  connected  with  the  crime  by  strong  pre- 
sumptive circumstances. 

We  find  also  a  qualification  of  the  doctrine  in  the  (licttim  of 
a  distinguished  reporter.  It  is  found  in  a  note  to  the  case  of 
Specr  V.  Coate,  3  McCord  (S.  C),  marg.,  232,  where  the  reporter 
gives  a  summary  of  the  exceptions  to  the  rule  excluding  hear- 
say evidence,  and  in  paragraph  12  he  says:  "So  confessions 
in  extremis  that  the  person  himself  had  committed  a  forgery 
of  which  another  was  indicted  are  admissible,"  citing  as  au- 
thority Clymcr  v.  Littler,  1  W.  Bl.,  345.  The  reporter  then  adds 
his  own  opinion:  "So  I  should  think  that  where  a  person 
comes  forward  and  confesses  the  crime,  and  surrenders  himself 
lo  justice,  such  confessions  would  be  admissible  evidence  for  a 


1|.  Y 


nil 


96 


AMERICAN  CRIMINAL  REPORTS. 


m 


11 


i^l 


prisoner  accused  of  the  same  offense."  It  should  be  observed 
that  stress  is  phiced  on  the  fact  tliat  the  person  confessing  also 
surrenders  himself  to  justice,  implying  that  the  confession  alone 
would  be  insufficient;  but  we  ought  also  to  add  that  the  prin- 
ciple of  the  case  cited  from  1  "W.  Bl,  oi5,  which  led  to  and 
suggested  the  proposition  just  referred  to,  owing  to  some 
oversight  or  mistake,  was  stated  in  an  erroneous  and  most 
misleading  manner.  It  would  be  supposed  upon  reading  the 
note  of  tlio  case  that,  upon  the  trial  of  one  person  indicted  for 
the  crime  of  forgery,  tlie  confessions  in  extremis  of  anotl'ier 
person  were  held  admissible  in  defense  of  the  person  on  trial. 
But  it  was  no  such  cnse.  On  the  contrary,  it  was  a  mere  civil 
action  based  uj)on  a  controversy  between  adverse  claimants  to 
property  under  two  different  wills  of  one  Clymer,  deceased. 
The  action  was  ejectment.  The  plaintiff  claimed  under  a  will 
made  in  17i3.  The  det'eiulant  claimed  under  the  heir  at  law 
by  an  instrument  dated  in  1745,  very  imperfect  in  form,  but 
purporting  to  iiave  been  subscribed  by  Mr.  Clymer,  and  to  give 
the  property  as  follows ;  "  Whereby,  in  consideration  of  natural 
affection,  he  covenants  and  agrees,"  but  with  nobody,  "  that 
the  lands  in  question  shall  go  and  be  given  to  his  wife  for  life, 
and  then  to  Elizabeth,  wile  of  William  Medlycott,"  she  being 
also  his  heir  at  law,  "and  her  heirs  forever."  It  was  attested 
by  the  said  AVilliam  Medlycott  and  Elizabeth  J\litchell.  The 
first  will  was  concealed,  and  William  Medlycott  took  possession 
under  the  last  one  in  right  of  his  wife;  but  on  his  death-bed, 
in  1740,  he  declared  that  the  instrument  of  1745  was  forged 
by  himself;  and  he  produced  from  under  the  bedclothes  the 
first  will,  of  1743,  and  caused  it  to  be  sent  to  the  parties  inter- 
ested, who  had  it  proved,  and  who  then  brought  this  suit;  and 
this  evidence,  without  any  objection,  went  before  the  jury  in 
connection  with  the  inspection  of  the  two  wills,  and  verdict 
was  rendered  for  the  plaintiff.  Lord  Mansfield,  in  giving  the 
opinion  of  the  court  on  this  point,  simpl}'  says; 

"The  testator  died  in  174G;  both  wills  in  the  custody  of 
Medlycott;  the  other  subscribing  witness  d(?ad  ;  his  wife  to  bo 
benefited  under  it;  he,  on  his  death-bed,  sends  the  lessor  of 
the  plaintiff  his  title,  which  is  inconsistent  with  that  under 
which  the  defendant  claims.  Under  all  these  circumstances  I 
think  it  admissible  evidence.     No  general  rule  can  be  drawn 


CROWN  CASES  RESERVED. 


97 


from  it.  No  objection  was  made  to  its  production.  It  came 
out,  it  seems,  on  the  cross-examination  of  the  defendant's 
counsel.  Unless,  therefore,  manifest  injustice  had  been  done 
on  the  whole  case,  there  is  no  ground  for  a  new  trial.  Here 
appears  to  be  good  reason  for  the  verdict." 

A  further  criticism  of  the  proposition  referred  to  may  be 
found  in  2  Phil.  Ev.  (4th  Amer.  from  7th  London  Ed.,  Carver 
&  Hill's  Notes),  p.  703,  note  493. 

"  And  if  an  actual  surrender  should  make  the  declaration 
admissible,  it  would  at  once  throw  open  the  door  for  fraudu- 
lent testimony,  even  in  exculpation  of  the  most  atrocious 
criminals.  The  self-accuser  is  yet  to  be  tried,  and  he  may  act 
under  the  full  consciousness  of  having  such  clear  proofs  of  his 
own  innocence  —  an  alibi,  or  some  other  evidence  —  that  he 
would  be  risking  but  little  by  doing  the  whole  as  an  act  of 
solemn  trickery  in  behalf  of  his  friend.  The  surrender  would 
not  estop  him.  Even  should  the  people  prosecute,  convict  and 
execute  him  as  the  sole  malefactor,  the  verdict  would  not  estop 
them,  nor  be  any  evidence  whatever  against  the  first  accusa- 
tion.    It  would  be  res  inter  alios.^' 

There  was  no  error  in  the  ruling  complained  of. 

(The  other  judges  concurred.) 


Ceown  Cases  Reserved. 


Assault  with  intent  to  rape:  Evidence  ahotping  prosecutrix  had  pre- 
vious connection  with  accused,  but  not  with  others,  admissible, 

(Reg.  V.  Riley,  16  Cox,  Cr.  C,  191.) 


{Reporter's  advance  sheets.) 

Upon  an  imlictment  which  charges  a  prisoner  with  an  attempt  to  rape,  the 
prosecutrix  may  be  cross-examined  as  to  tlie  fact  of  her  having  had 
connection  with  the  prisoner  previously  to  the  commission  of  the  al- 
leged offense ;  and  should  she  deny  the  fact  of  such  connection  hav- 
ing taken  place,  evidence  may  be  given  in  order  to  contradict  such 
denial.) 


1  See  note. 


Vol.  VII  — 7 


98 


AMERICAN  CRIMINAL  REPORTS. 


Case  reserved  for  the  consideration  of  this  court  by  the 
chairman  of  quarter  sessions  for  the  hundred  of  Salford,  in 
the  county  of  Lancaster,  in  which  it  was  stated  that: 

1.  Janil's  Riley  was  tried  upon  an  indictment  charging  him 
with  an  assault  upon  one  Alice  Creswell  with  intent  to  com- 
mit a  rape  upon  her;  there  were  two  other  counts  in  the  in- 
dictment, one  charging  an  indecent  assault,  the  other  a  common 
assault. 

2.  The  defense  raised  by  the  prisoner's  counsel  was  that 
whatever  was  done  by  the  prisoner  to  the  said  Alice  Creswell 
was  done  with  her  consent.  The  said  Alice  Creswell  was  at 
the  time  of  the  commission  of  the  alleged  ofTonse  by  the  pris- 
oner a  woman  of  or  about  thirty  years  of  ago. 

3.  She  was  cross-examined  by  the  comiscl  for  the  prisoner 
as  to  previous  repeated  voluntary  acts  of  connection  with  the 
prisoner  at  specified  times  and  places  before  the  time  of  the 
commission  of  the  alleged  olfcnso,  which  she  denied,  and 
swore  that  she  never  at  any  time  or  place  had  had  connection 
with  the  prisoner. 

4.  Counsel  for  the  defense  proposed  to  call  several  witnesses 
to  prove  these  several  alleged  acts  of  connection  between  the 
prosecutrix  and  the  prisoner,  but  the  court  refused  to  allow 
said  witnesses  to  be  called  or  examined  for  the  purpose  of  giv- 
ing such  evidence,  upon  the  ground  that  such  evidence  was  not 
admissible  for  the  prisoner  upon  the  said  indictment,  and  that 
the  counsel  for  the  prisoner  was  bound  to  take  the  answer  of 

'the  prosecutrix  for  the  purposes  of  that  trial,  but  the  court 
reserved  for  the  opinion  of  this  honorable  court  the  question 
as  to  whether  they  were  right  in  so  ruling. 

The  prisoner  was  convicted  on  the  lirst  count  of  the  said 
indictment,  but  the  court  respited  judgment  and  admitted  him 
to  bail  pending  the  decision. 

If  the  court  be  of  opinion  that  the  court  was  right  in  re- 
jecting the  said  evidence,  the  conviction  is  to  stand ;  otherwise 
to  be  quashed. 


Lord  Colertdoe,  C.  J.  I  am  of  opinion  that  this  convic- 
tion must  be  quashed,  on  the  ground  that  evidence  material 
to  the  issue  was  rejected  by  the  court.  The  indictment  was 
for  an  assault  committed  by  the  prisoner  upon  a  woman  with 


CROWN  CASES  RESERVED. 


99 


intent  to  commit  a  rape  upon  her;  and  the  questions  and  an- 
swers that  were  rejected  for  the  following  purpose,  namely 
that  tlie  woman  having  denied  that  she  had  I.kI  connection 
witli  tlie  individual  accused  of  assaulting  her,  !l  was  sought 
ah  (lUitwIe  to  prove  that, at  certain  specilied  limes  and  places 
before  tlie  time  of  the  commission  of  the  alleged  offense,  she 
had  voluntarilylliad  connection  with  the  prisoner.  It  appears 
to  me  clear  that  such  evidence  was  admissible.  Now,  it  has 
been  held  over  and  over  again  that  where  c  dence  is  denied 
by  the  prosecutrix  with  regard  to  acts  of  connection  commit- 
ted by  her  with  persons  other  than  the  prisoner,  she  cannot 
be  contradicted.  The  rejection  of  such  evidence  is  founded 
on  good  common  sense,  not  only  because  it  would  put  very 
cruel  hardship  on  a  prosecutrix,  but  also  on  the  ground  that 
the  evidence  does  not  go  to  the  point  in  issue,  that  point  be- 
ing whether  or  not  a  criminal  assault  had  been  uuide  upon 
her  by  the  prisoner.  To  admit  evidence  of  connection  pre- 
viously with  persons  other  than  the  prisoner  would  be  plainly 
contrary  to  the  most  elementary  rules  of  evidence,  but  to  re- 
ject evidence  as  to  the  particular  person  is  another  matter. 
Because  not  only  does  it  render  it  more  likely  that  she  would 
or  would  not  have  consented,  but  it  is  evidence  which  goes  to 
the  very  point  in  issue.  Take  the  case  of  a  woman  having 
lived  without  marriage  for  two  or  three  vears  with  a  man  before 
the  assault;  could  it  be  contended  that,  had  she  denied  it,  proof 
of  that  sort  was  not  material  to  the  issue;  and,  if  material  to 
the  issue,  that  if  denied  evidence  to  contradict  it  could  not  be 
given.  I  see  that  IluUock,  B.,  is  reported  to  have  decided 
practically  the  very  point  upon  which  our  opinion  is  now 
sought,  that  appears  from  a  note  to  the  case  oi  Hex  v.  Martin, 
6  C.  &  P.,  562,  where  the  case  of  Jiex  v.  Aspimoall  is  cited. 
If  that  case  can  je  found  it  is  directly  in  point;  but,  like  Mr. 
Addison,  I  have  looked,  and  I  confess  I  cannot  lind  the  case.' 
It  is  enough  for  us  to  say,  however,  in  the  absence  of  that 

1  The  reference  in  the  note  to  Hex  v.  Martin  eliould  have  been  to  the 
third  edition  of  Starkie's  Law  of  Ev.,  vol.  3,  p.  9.o3,  where  the  following 
note  is  to  be  found:  "  Nor  can  the  prosecutrix  be  asked  whether  she  has 
not  had  connection  witli  another  man,  or  with  a  person  named.  The  pris- 
oner may,  however,  show  that  the  prosecutrix  has  been  previously  crimi- 
nally connected  with  himself.  {Rex  v.  Aapinwall,  Cor.  HuUock,  B,,  York 
Springs  Assizes,  1827.)" 


100 


AMERICAN  CRIMINAL  REPORTS. 


case,  that  the  decision  is  common  sense;  and  on  ground  not 
only  of  nuthority  but  of  good  sense,  I  am  of  opinion  that  this 
evidence  ougiit  not  to  have  been  rejected,  and  that,  as  it  was 
rejected,  the  conviction  must  be  quashed. 

Pollock,  B.  I  agree.  The  only  question  is,  Was  the  evi- 
dence tendered  relevant  to  the  issue?  If  it  fconly  as  to  evi- 
dence of  character,  as  evidence  with  regard  to  connection 
with  other  men,  it  is  inadmissible.  But  the  moment  it  is  to 
show  that  she  had  had  connection  with  the  prisoner  previously 
to  the  assault  it  becomes  material  evidence  and  must  bo  ad- 
mitted.   The  conviction  must  therefore  be  quashed. 

Stephen,  J.  I  am  of  the  same  opinion  entirely,  and  have 
hardly  anything  to  add.  I  think  that  the  weight  of  authority 
was  decidedly  in  the  direction  in  which  this  decision  will 
place  it.  Although  some  of  the  authorities  were  rather  in 
the  nature  of  dicta  than  of  absolute  judgments,  I  did  not 
think  when  I  wrote  upon  the  subject  that  there  could  be 
much  room  for  doubt;  but  at  the  same  time,  in  the  absence  of 
direct  authoritv,  I  did  not  feel  that  my  statement  could  be 
made  without  suggesting  that  there  might  be  doubt.  Now, 
however,  by  the  decision,  the  doubt,  if  it  existed,  is  removed. 
I  may  add  that  our  observations  with  regard  to  evidence  as  to 
connection  with  other  men  being  inadmissible  are  not  intended 
to  exclude  or  conflict  with  the  decisions  as  to  the  admissi- 
bility of  evidence  as  to  prostitution. 

Mathew  and  Wills,  JJ.,  were  of  the  same  opinion. 

Conviction  quashed. 

Note.— It  is  not  competent  to  indict  for  an  asBault  with  intent  to  rape, 
and  convict  upon  evidence  establishing  an  attempt  to  rape  by  fraud.  An 
assault  with  intent  to  rape  can  only  be  established  by  proof  of  force  or  at- 
tempted force.  This  offense  cannot  be  committed  by  means  of  threats  or 
fraud.  The  offense  of  an  attempt  to  commit  rape  may,  however,  be  com- 
mitted by  use  of  such  means.  {Burney  v.  State,  21  Tex,  App.,  566.)  23 
Tex.  App.  204. 


mm 


PEOPLE  V.  WIOHTMAN. 


101 


People  v.  Wioiitman. 

(104  N.  Y.,  598.) 

Blackmail:  Threatening  letters. 

Blackmail  — What  coNSTirt'TES  a  thiikat  to  extort.— A  false  nccu- 
sntion  in  writing  of  liuvinK  begotten  a  child  by  illicit  hcxuuI  inter- 
course, the  churgo  being  known  by  the  party  making  it  to  be  false, 
uccouipanied  with  a  suggestion  that  legal  proceedings  will  be  taken 
unless  the  person  against  whom  it  is  made  purchiisea  silence,  may  be  a 
threat  within  Ponid  Code  of  New  York,  section  MS,  making  it  a  crime 
for  one  to  send  a  letter,  knowing  the  contents  thereof,  making  such  a 
threat  with  intent  to  extort  money,  although  in  form  the  accused  ia 
simply  called  u|)on  to  render  satisfaction  for  that  which,  if  the  charge 
was  true,  would  entitle  the  accuser  to  ])ecuniary  compensation;  and  a 
conviction  on  evidence  tending  to  prove  such  allegations  in  the  indict- 
ment will  be  atlirmed. 

Appeal  from  a  judgment  of  tlio  general  term,  First  Jiulicial 
Department,  aflinning  a  judgment  of  the  court  of  oyer  and 
terminer,  Now  York  county. 

T.  W.  Tijntj,  for  appellant. 
McKenzie  Seniple,  for  res|)ondent. 

Anukews,  J.  Omitting  the  superfluous  words  in  the  indict- 
ment, it  charges  among  other  things,  in  substance,  that  the 
defendant  and  others,  well  knowing  the  contents  of  the  letter, 
and  with  intent  to  extort  money  from  the  prosecutor,  did,  on 
a  day  and  at  a  place  mentioned  in  the  indictment,  feloniously 
send  and  cause  to  be  forwarded  to  and  received  by  the  prose- 
cutor the  letter  set  out  in  the  indictment,  threatening  to  ex- 
pose him  to  disgrace  by  falsely  and  publicly  accusing  him  of 
havmg  had  sexual  Intercourse  with  one  May  A.  Thatcher,  an 
unmarried  female,  resulting  in  her  pregnancy  of  a  child  likely 
to  be  born  a  bastard.  The  letter  set  out  in  the  indictment  pur- 
ports to  have  been  written  by  one  of  the  co-defendants,  an  at- 
torney at  law,  in  behalf  of  May  A.  Thatcher,  and  was  addressed 
to  the  prosecutor.  The  letter,  after  stating  that  the  writer 
had  been  informed  by  May  A.  Thatcher  that  there  had  been 
sexual  intercourse  between  hor  and  the  prosecutor,  and  that 
she  was  with  child  by  him,  proceeds  as  follows:  "I  suppose 
you  are  aware  that  under  these  conditions  you  are  liable  for 
the  support  of  the  child  and  the  mother's  expenses  during  her 


W: 


102 


AMERICAN  CRIMINAL  REPORTS. 


it 


sickness.  Are  you  willing  to  make  suitable  provision  for  such 
liability,  and  thereby  avoid  publicity,  or  will  it  be  necessary 
to  take  legal  steps  in  the  matter?"  The  defendant  was  tried 
and  convicted. 

The  evidence  is  not  contained  in  the  record.  The  bill  of 
exceptions  states  that  the  people,  to  maintain  the  issue  on  their 
part,  introduced  evidence  tending  to  ])rove  the  acts  charged  in 
the  first  live  counts  of  the  indictment.  It  must  be  assumed, 
therefore,  that  the  evidence  justified  the  jury  in  finding  that 
the  defendant  knowingly  sent  a  letter  to  the  prosecutor,  falsely 
charging  him  with  having  had  illicit  intercourse  with  May  A. 
Thatcher,  resulting  in  pregnancy,  and  that  it  was  sent  for  the 
purpose  of  extortion. 

It  is  claimed,  on  behalf  of  the  defendant,  that  to  support  a 
conviction  under  section  558  of  the  Tonal  Code,  for  sending  a 
threatening  letter,  ihe  letter  complained  of  must  not  only  in 
itself  contain  a  threat,  but  it  must  on  its  face  be  a  threat  to 
do  an  illegal  thing.  It  is  doubtless  true  that  a  demand  for  in- 
demnity for  a  wrong,  made  in  good  faith,  accom|)anied  by  a 
suggestion  that  legal  proceedings  will  be  resorted  to  unless 
satisfaction  is  voluntarily  made,  is  not  a  threat  within  the  stat- 
ute, although  the  wrong  is  one  the  disclosure  of  which  would 
bring  disgrace  upon  the  guilty  I'arty.  Viiit  if  the  party  making 
the  demand  knows  that  he  has  suffered  no  wrong,  a  threat  to 
prosecute  unless  settlement  is  made  might,  we  conceive,  bring 
the  case  witliin  the  statute,  although  on  the  face  of  the  letter 
the  party  writing  it  might  seem  to  be  asserting  only  his  legal 
rights.  In  otlier  words,  a  false  accusation  in  writing  of  an 
act  involving  moral  turpitude,  known  by  the  party  making  it 
to  be  false,  accompanied  with  a  suggestion  that  legal  proceed- 
ings will  be  taken  unless  the  person  against  whom  it  is  made 
purchases  silence,  may  be  a  threat  within  the  statute,  although 
in  form  the  accused  is  simply  called  upon  to  render  satisfaction 
for  that  which,  if  the  charge  was  true,  would  entitle  the  ac- 
cuser to  pecuniary  com|)ensation.  The  mere  form  in  which 
the  threat  is  made  is  not  decisive.  The  letter  in  this  case  dis- 
tinctly intimated  that  legal  proceedings  would  be  taken  to 
enforce  the  liability  unless  the  prosecutor  made  voluntaiy 
jn'ovision  for  the  mother  and  child,  and  he  is  asked  whether 
he  is  willing  to  do  this  to  avoid  publicity. 


PEOPLE  V.  FITZGERALD. 


103 


The  averment  in  the  indictment  that  the  defendant,  for  the 
purpose  of  extorting  money  from  the  prosecutor,  threatened 
to  expose  liun  to  disgrace  by  falsely  charging  him  with  the 
criminal  acts  stated,  fairly  implies  that  defendant  knew  the 
charge  contained  in  the  letter  was  false;  and  the  admission  in 
the  record  that  evidence  was  given  tending  to  prove  the  acts 
charged  in  the  indictment  must  have  been  intended  to  cover 
not  merely  the  bare  act  of  sending  the  letter  but  the  circum- 
stances averred  in  connection  with  the  act;  that  is,  that  it  was 
a  scheme  to  extort  money  bv  making  a  false  charge. 

We  think  the  indictment  was  good  in  substance,  and  that 
the  conviction  should  be  aflirmed.  See  People  v.  T/wjnpsou, 
97  K  Y.,  313;  Ji\y.  v.  Ucndy,  4  Cox,  C.  C,  2i3;  Ecii  v. 
Tucker,  1  :Moody,  134. 

(All  concur.) 


PkoPLE    v.    FnZOKUALD. 

(105  N.  Y.,  146.) 
BoDY-STEAi,..,ot :  IiuUctment. 

1.  Exhumation  hy  pvulw  althokities.— Penal  Code  of  New  York,  sec^tion 
211,  which  |)rovi(U's  tliat  a  person  who  removes  a  dead  body  of  a  luiman 
being,  or  any  part  thereof,  from  r.  grave  or  otlier  place  while  await- 
ing burial,  witiiout  authority  of  la  v,  witli  intent  to  steal  tlie  same,  or 
for  the  purjiose  of  dissection,  or  for  procuring  a  reward  for  the  return 
of  the  same,  or  from  malice  or  wantonness,  shall  be  punishable  by  line 
and  in^irisoiiment,  has  no  api)lication  wliei'c  a  body  is  exhumed  by 
the  legally  constituted  authorities,  and  disnected  bytlieir  direction, 
for  the  purpose  of  ascertaining  whether  death  liad  been  produced  by 
poison. 

3.  Irkeoulauities  oi'"  couoneu. —  In  a  criminal  indictment  against  a  person 
at  whose  instance  tlie  coroner  exhumed  a  body  and  caused  it  to  be 
dissected,  any  irregularities  on  the  part  of  the  coroner  in  failing  to 
imiianel  a  jury  will  not  be  sufficient  to  dejjrive  his  acts  of  their  legal 
autliority  so  as  to  convict  the  accused  of  body-stealing. 

Appeal  fi'om  judgment  of  the  general  term  of  Fourth  Ju- 
dicial Deprrtment. 

Jacob  Sc/ooart",  for  appellant. 
Jt>/m  B.  StanchJieUI,  for  respondent. 


104 


AMERICAN  CRIMINAL  REPORTS. 


Eapallo,  J.    The  facts  of  this  extraordinary  case  are  fully 
stated  in  the  dissenting  opinion  of  Ilardin,  J.,  at  general  term. 
We  should  content  ourselves  with  concurring  in  that  opinion 
were  it  not  that  it  simply  orders  a  new  trial  for  errors  in  the 
charge  and  for  refusals  to  charge,  while  we  think  that  it 
should  have  gone  further,  and  have  held  that  the  facts  of  the 
case  did  not  establish  a  crime  punishable  under  the  statute 
against  body-stealing  (Penal  Code,  §  311),  under  which  the  pris- 
oner was  indicted  and  convicted,  and  which  is  in  the  following 
words:  "Section  311.  A  person  who  removes  the  dead  body  of 
a  human  being,  or  any  part  thereof,  from  a  grave,  vault  or 
other  place  where  the  same  has  been  bui'ied,  or  from  a  place 
where  the  same  has  been  deposited  while  awaiting  burial, 
without  authority  of  law,  with  intent  to  steal  the  same,  or  for 
the  purpose  of  dissection,  or  for  the  pur[)ose  of  procuring  a  re- 
Avard  for  the  return  of  the  same,  or  from  malice  or  wanton- 
ness, is  punishable  by  imprisonment  for  not  more  than  five 
years,  or  by  line  not  exceeding  $1,000,  or  both."     This  statute 
describes  every  kind  of  "body-stealing"  known  to  the  law. 
The  addition  inserted  in  the  Penal  Code,  "or  for  the  purpose 
of  obtaining  a  reward  for  the  same,"  was  the  only  substantial 
change  made  since  the  llevised  Statutes  in  the  definition  of 
this  heinous  crime. 

Tlie  intent  of  the  statute  is  manifest.  It  certainly  was  not 
intended  to  apply  to  exhumations  made  by  legally  constituted 
public  authorities  for  the  purpose  of  ascertaining  whether 
crime  has  been  committed  in  producing  the  death  of  the 
person  whose  body  is  exhumed.  Wlieu  the  exhumation  is 
made,  not  secretly,  but  publicly,  on  open  application  to  the 
otficer  of  justice  charged  with  the  duty  of  inquiring  into  the 
cause  of  death  of  any  person  whose  body  is  brought  within 
his  jurisdiction,  it  is  a  total  misapplication  of  the  statute 
against  body-stealing  to  use  it  for  the  ])urpose  of  imposing 
its  punishment  on  all  persons  concerned  in  the  exhumation,  in 
case  any  proceedings  of  the  otticer  under  whose  direction  it 
was  made  should  be  found  to  be  irregular. 

The  irregularity  alleged  in  this  case  in  the  conduct  of  the 
coroner  is  that  he  did  not  impanel  a  jury  before  ho  ordered  the 
post-mortem  examination  to  be  made  by  the  physicians  whom 
he  summoned  for  that  puipose.     A  sufficient  number  of  per- 


PEOPLE  V.  FITZGERALD. 


105 


sons  to  form  a  jury  was  assembled  by  direction  of  Uie  cor- 
oner, but  the  jury  was  uot  drawn  and  impaneled.  I  refer  to 
the  opinion  of  Judge  Hardin  as  correctl}'^  stating  the  facts, 
which  we  have  verified  by  an  examination  of  the  testimony. 
The  point  of  law  is  debatable  whether  a  post-mortem  should 
take  place  before  the  coroner  has  impaneled  a  jury.  But  it  is 
settled  that  the  jwst-inortem  should  not  be  in  the  presence  of  the 
jury,  and  that  they  are  to  be  instructed  by  the  testimony  of 
the  physicians  who  are  designated  by  the  coroner  to  make  it. 
The  dissection  by  order  of  the  coroner  is  expressly  authorized. 
Penal  Code,  §  308;  CrisfeUl  v.  Perine,  15  Ilun,  202;  affirmed, 
81  N.  Y.,  022.  If,  as  in  England  at  one  time,  the  findings  of 
the  coroner's  jury  were  to  stand  as  an  indictment  by  a  grand 
jury,  some  point  might  be  made  on  behalf  of  the  accused  as 
to  the  validity  of  the  inquest  in  such  a  case  as  this.  But  to 
resort  to  those  questions  for  the  purpose  of  supporting  an  in- 
dictment for  body-stealing  under  the  circumstances  of  this 
case  is  quite  unreasonable.  In  the  present  case  the  defendant 
communicated  to  the  coroner  in  the  form  of  affidavits,  whether 
legally  authenticated  or  not  is  immaterial,  information  which 
should  have  induced  any  magistrate  not  neglectful  of  his  duty 
to  believe  that  ho  ought  to  investigate  the  matter  presented 
to  him.  Those  aliidavits  made  a  strong  case  to  lead  the  coro- 
ner to  believe  that  a  murder  had  been  committed,  and  that  an 
examination  of  the  bod}^  which  was  within  his  jurisdiction, 
would  disclose  the  fact.  The  defendant  sought  an  examina- 
tion of  the  body.  She  asked  the  coroner  to  do  his  duty,  and 
to  examine  the  body.  Whatever  motives  may  have  influenced 
her,  no  one  can  suppose  that,  however  unfounded  her  belief 
might  have  been,  there  was  not  sufficient  in  the  papers  she 
presented  to  the  coroner  to  justify  his  action,  and  there  is  no 
pretense  that  the  aifidavit  of  Dr.  Wooster,  which  she  pro- 
duced, had  been  in  any  manner  influenced  by  her.  Her  silence 
during  several  years  after  the  death  of  Gen.  Irvin  is  the  main 
argument  against  i\\Q  hona  fides  oi  her  charge,  and  it  is  said 
that  her  desire  was  not  so  much  for  the  punishment  of  crime 
as  to  obtain  some  pecuniary  advantage  for  herself  by  making 
defamatory  charges. 
However  this  may  be,  if  she  committed  wrong,  it  was  not 


m 


108 


AMERICAN  CRIMINAL  REPORTS. 


the  crime  of  botly-stealing,  and  on  this  ground  the  conviction, 
and  the  ju(lf>meut  of  the  general  term  allirming  it,  should  be 
reversed  and  the  prisoner  discharged. 

(All  concur.) 


Nichols  v.  State. 

(68  Wis.,  410.) 

Breaking  and  entering  railroad  car. 

1.  Indictment  —  Breaking  into  railroad  car.—  Revised  Statutes  of  Wis- 

consin, section  4410,  punibiics  any  person  who  shall  enter  in  the  night- 
time witiiout  hreuking,  or  shall  break  and  enter  in  the  day-time,  any 
raiiroac',  freiglit  or  passenger  car,  with  intent  to  coniniit  murder, 
.  robbery,  larceny,  or  other  felony.  Held,  that  an  indictment  under  this 
section,  cliarging  one  with  breaking  and  entering  the  car,  without 
specifying  wliether  by  day  or  night,  iu  ellect  charges  him  with  break- 
ing and  entering  in  the  day-time, 

2.  What  is  concealment.— The  accused  concealed  himself  in  a  chest, 

and  had  himself  shipjied  in  an  express  car.  and  in  that  way  gained  ad- 
mission to  the  car,  with  intent  to  assault  and  rob  the  express  messenger 
while  the  train  was  en  route.  Hell,  this  was  a  breaking  and  entering 
the  car,  within  the  meaning  of  the  statute.  The  word  "  break,"  hav- 
ing a  fixed  and  definite  meaning  at  common  law,  must  be  presumed 
to  have  been  used  in  that  sense  in  section  4410. 

3.  Description  of  locus  in  quo— Rah.uoad  cars. —  The    indictment 

charging  the  offense  as  having  been  committed  in  "freight  and  ex- 
press car  of  the  American  Express  Company"  sulHciently  describes  "  a 
railroad,  freight  or  passenger  car."  Within  the  meaning  of  section 
4410,  an  express  car  is  a  freight  car. 

4.  Evidence  —  Ownership.—  It  was  not  necessary  to  prove  distinctly  that 

the  car  mentioned  was  the  property  of  the  American  Express  Com- 
pany. Proof  of  exclusive  occupancy  and  control  of  the  car  by  the  ex- 
press comjjany  was  sufficient  proof  of  ownership. 
6.  Appeal—  Presimption  —  Trial.—  During  the  argument  of  the  case  to 
the  jury  the  district  attorney  commented  upon  the  failure  of  the  ac- 
cused to  testify,  whereupon  his  counsel  obj  cted,  but  the  court  over- 
ruled the  objection.  The  jury  knew  from  the  evidence  that  the 
accused  had  not  been  sworn,  and  had  admitted  his  guilt.  Held,  under 
the  circumstances,  and  it  not  appearing  of  record  just  what  the  dis- 
trict attorney  said,  and  what  was  the  occasion  of  it,  that  it  nmst  be 
presumed  that  something  occurred  or  was  said  which  rendered  the 
remark  proper. 


NICHOLS  V.  STATE. 


107 


Error  to  the  Circuit  Court  for  Jackson  County. 

The  phiiutiff  in  error  was  tried  and  convicted  of  the  offense 
cliarged  in  the  second  count  of  the  information,  to  the  effect 
that  July  25,  1SS5,  at  the  county  of  Jackson,  in  said  state,  the 
said  Nichols,  the  freight  and  express  car  of  tlie  American  Ex- 
press Comiiany  there  situate,  then  and  there  unlawfully,  felo- 
niously and  burglariously  did  break  and  enter,  with  intent 
then  and  there  the  goods,  chattels  and  property  of  said  Amer- 
ican Express  Company,  then  and  there  in  the  said  freight  and 
express  car  being  found,  then  and  there  feloniously  and  bur- 
glariously to  steal,  take,  aiiu  carry  away,  against  the  peace  and 
dignity  of  the  state  of  AVisconsin.  Upon  the  verdict  of  guilty 
being  returned,  the  prisoner  moved  the  court  in  arrest  of  judg- 
ment thereon,  for  the  reason  that  the  infonnation  did  not 
charge  the  prisoner  with  any  criminal  offense  known  to  the 
law  in  this  state;  which  motion  was  denied,  and  the  prisoner 
excepted.  Judgment  was  thereupon  remlered,  and  sentence 
imposed  upon  the  prisoner  to  the  elfect  that  he  be  confined  at 
hard  labor  in  the  state's  prison  for  the  term  of  three  years. 
From  that  judgment  the  prisoner  brings  this  writ  of  error. 


//.  ir.  Barney  and  John  Turner^  for  plaintiff  in  error. 
Tlie  Attorney- General,  for  defendant  in  error. 


Cassouay,  J.  There  is  undisputed  testimony  on  the  ])art  of 
the  state  to  the  effect  that  Saturday,  July  25,  1885,  the  plaint- 
iff in  error  w;is  stopping  at  a  hotel  in  Black  liiver  Falls,  hav- 
ing his  name  registered  as  W.  II.  Eldredge,  and  a  room  assigned 
liim  opposite  tiiereto.  lie  had  then  been  there  about  three  da^'s. 
In  the  afternoon  of  the  day  named  he  had  a  box  or  chest  taken 
from  the  depot  to  his  room,  weighing  about  one  iuindred  and 
fifty  pounds.  No  evidence  was  given  as  to  what  was  in  it. 
About  3  o'clock  in  the  afternoon  of  the  same  day  he  arranged 
with  the  local  express  agent  for  the  sending  of  a  box  to  Chi- 
cago, then  at  the  hotel,  and  represented  by  him  as  weighing 
abuut  two  hundred  and  twenty-five  pounds.  By  his  pre- 
arrangement,tlio  box  was  brought  to  the  depot  just  in  time  for 
the  7:50  P.  M.  Chicago  train,  and  was  shipped  in  the  express 
car  thereon  by  the  local  agent,  as  directed.  Soon  afier  the 
starting  of  the  train  there  seems  to  have  been  a  suspicion  as 


^Kr?« 


108 


AMERICAN  CRIMINAL  REPORTS. 


to  the  contents  of  the  box.  This  suspicion  was  increased  as 
telecraras  were  received  at  different  stations  from  Black  River 
Falls  respecting  the  box.  Finally,  being  convinced  by  such 
dispatches  that  there  was  a  man  in  the  box,  the  train-men 
telegraphed  forward  to  Elroy  to  secure  the  presence  of  an 
officer  on  the  approach  of  the  train  to  nrke  tljo  arrest.  On 
reaching  Elroy,  in  the  night,  this  box  in  tlie  express  car  was 
opened,  and  the  plaintilf  in  error  was  found  therein,  with  a 
revolver,  billy,  razor,  knife,  rope,  gimlet,  and  a  bottle  of  chloro- 
form. There  was  also  evidence  tending  to  show  that  there 
were  packages  of  money  in  the  custody  of  the  express  agent 
on  the  car;  that  such  agent  had  an  assistant  as  far  as  Elroy; 
that  from  there  to  Cliicago  such  car  was  usually  in  charge  of 
only  one  man;  that  after  the  arrest,  and  wlien  asked  his  ob- 
ject in  being  thus  shipped  in  the  box,  the  prisoner  voluntarily 
admitted,  in  effect,  that  he  had  considered  his  clumces  care- 
fully;  that  he  went  into  the  thing  as  a  matter  of  s[)ecuhition; 
that  he  needed  money,  and  needed  it  quickly ;  that  he  expected 
to  get  fully  $50,000;  that  had  he  passed  out  of  Elroy  he  would 
have  got  otf  with  the  money;  that,  in  a  case  of  that  kind,  if  a 
human  life  stood  in  his  way,  it  did  not  amount  to  a  snap  of 
the  finger. 

The  motion  in  arrest  of  judgment  was  based  upon  the  dis- 
similarity in  the  language  emplo3'ed  in  the  second  count  in  the 
information,  under  which  the  plaintiff  in  error  was  convicted, 
and  the  statute  under  which  he  was  prosecuted. 

1.  That  statute  provides,  in  effect,  that  *'  any  person  who 
shall  enter  in  the n'ujht-tlme xoithouthreakliuj,  or  shall  bi'eck  and 
.;'):'  m  the  day-time,  any  .  .  .  railroad  freight  car,  or 
V  !  •  'i:J'er  car,  with  intent  to  commit  the  crime  of  murder,  rajjc, 
■"  'b  '^' ",  larceny,  or  other  felony,  shall  be  punished  by  im- 
pii^oinnent  in  the  state  prison  not  more  than  three  years,  nor 
less  than  one,"  etc.  E.  S.,  sec.  4410.  Under  this  statute  such 
entry  with  such  intent,  in  the  niy/tt-thne,  even  without  break- 
ing, is  sufficient  to  constitute  such  offense.  Holland  v.  Com., 
82  Pa.  St.,  32.5.  But  the  allegation  is  that  he  "did  break  and 
enter  with  intent,"  etc.  Had  the  allegation  been  that  ho  "  did 
Ireak  and  enter  in  the  night-time,"  with  such  intent,  then  the 
case  would  have  come  under  the  preceding  section.  That 
would  have  been  for  an  offense  of  a  higher  grade  and  could 


NICHOLS  V.  STATE. 


109 


only  have  been  committed  in  the  night-time.  Manifestly  there 
was  no  intention  of  the  pleader  to  prosecute  under  that  section. 
Ills  evident  purpose  was  to  charge  the  offense  prescribed  in 
the  section  quoted.  That  could  be  done  by  charging  that  it 
was  committed  in  the  night-time  without  breaking.  But  if  it 
occurred  in  the  day-time,  then  it  was  necessary  to  charge  a 
breaking  in  order  to  bring  the  case  within  the  section.  If  it 
occurred  at  all  it  necessarily  occurred  either  in  the  night-time 
or  in  the  day-time.  To  charge  that  the  offense  was  committed 
in  tlie  day-time  would  only  have  been  another  way  of  charg- 
ing negatively  that  it  was  not  committed  in  the  night-time,  so 
as  to  prevent  its  coming  under  the  preceding  section,  which 
prescribed  the  higher  offense.  But  such  negative  allegation 
would  have  been  unnecessarj'-.  State  v.  Kane,  G3  Wis.,  260  (6 
Am.  Cr.  Iv.,  99).  Since  the  count  in  question  charges  the  break- 
ing as  well  as  the  entry,  and  fails  to  charge  that  it  was  in  the 
night-time,  it  does,  in  effect,  charge  that  he  did  break  and 
enter  in  the  day-time.  Com.  v.  liei/nolds,  122  Mass.,  454;  But- 
ler V.  People,  4  Denio,  68.  "  For  this  purpose,"  said  Black- 
stone,  ""ancientl}'  the  day  was  accounted  to  begin  only  at  sun- 
rising,  and  to  end  immediately  upon  sunset;  but  the  better 
opinion  seems  to  be  that  if  there  be  daylight  or  crepusculum 
enough  begun  or  left  to  discern  a  man's  face  withal,  it  is  no 
burglary.  But  this  does  not  extend  to  moonlight."  4  Bl. 
Comm.,  224.  Under  this  definicion  we  must  conclude  from 
the  proof  that  the  entry  was  in  the  day-time. 

2.  The  question  recurs  whether  the  proofs  show  that  there 
was  a  breaking  in  fact,  within  the  meaning  of  the  statute. 
Certainly  not  in  the  sense  of  picking  a  lock  or  opening  it  with 
a  key,  or  lifting  a  latch,  or  severing  or  mutilating  the  door,  or 
doing  violence  to  any  portion  of  the  car.  On  the  contrary, 
the  box  was  placed  in  the  express  car  with  the  knowledge 
and  even  by  the  assistance  of  those  in  charge  of  the  car.  But 
it  was  not  a  passenger  car,  and  the  plaintiff  in  error  was  in  no 
sense  a  passenger.  The  railroad  company  was  a  common  car- 
rier of  ]mssengers  as  well  as  freight.  But  the  express  company 
was  exclusively  a  common  carrier  of  freight;  that  is  to  say, 
goods,  wares  and  merchandise.  As  such  carrier,  it  may  have 
at  times  transported  animals,  birds,  etc.,  but  it  may  be  safelj'^ 
assumed  that  it  never  knowingly  undertook  to  transport  men 


^\ 


110 


AMERICAN  CRIMINAL  REPORTS. 


in  packages  or  boxes  for  special  delivery.  True,  tlio  plaintiff 
•'  in  error  "contracted  with  tlie  local  express  agent  for  the  car- 
'  riage  and  delivery  of  such  box,  but  neither  lie,  nor  any  one 
connected  with  the  exj/ress  cm  or  the  train,  had  any  knowl- 
edge or  expectation  of  a  man  being  concealed  witliin  it.  On 
the  contrary,  thoy  each  and  all  had  the  riglit  to  assume  that 
the  box  contained  notiiing  but  inanimate  substance— goods, 
wares  or  merchandise  of  some  description.  Tlie  plaintiff  in 
error  knew  that  he  had  no  right  to  enter  the  express  car  at  all 
without  the  consent  of  those  in  charge.  The  evidence  was  suf- 
iicient  to  justify  the  conclusion  that  he  unlawfully  gained  an 
entrance  without  the  knowledge  or  consent  of  those  in  charge 
of  the  car,  by  false  pretenses,  fraud,  gross  imposition  and  cir- 
cumvention, with  intent  to  commit  the  crime  of  robbery  or 
larceny,  and,  in  doing  so,  if  necessary,  the  crime  of  murder. 
This  would  seem  to  have  been  sufficient  to  constitute  a  con- 
structive breaking  at  common  law,  as  defined  by  Blackstone, 
thus:  "  To  come  down  a  chimney  is  held  a  l)nrglarious  entry; 
for  that  is  as  much  closed  as  the  nature  of  things  will  permit. 
So,  also,  to  knock  at  the  door,  and,  upon  opening  it,  to  rush 
in  with  a  felonious  intent;  or,  under  pretense  of  taking  lodg- 
ings, to  fall  upon  the  landlord  and  rob  hiin;  or  to  procure  a 
constable  to  gain  admittance,  in  order  to  search  for  traitors, 
and  then  to  bind  the  constal)le  and  rob  the  house.  All  these 
entries  have  been  adjudged  burglarious,  though  there  was  no 
actual  breaking,  for  the  law  will  not  suffer  itself  to  be  trifled 
with  by  such  evasions,  especially  uniler  the  elouk  of  legal  pro- 
cess. And  so,  if  a  servant  opens  and  enters  iiis  own  master's 
chamber  door  with  a  felonious  design ;  or  if  any  other  person, 
lodging  in  the  same  house  or  in  a  public  inn,  opens  and  enters 
another's  door,  with  such  evil  intent,  it  is  burglary.  Nay,  if 
tlie  servant  conspires  with  a  robber  and  lets  him  into  the  house 
by  night,  this  is  burglary  in  both;  for  the  servant  is  doing  an 
unlawful  act,  and  the  opportunity  afforded  him  of  doing  it 
with  greater  ease  rather  aggravates  than  extenuates  the  guilt." 
4  Bl.  Comm.,  220,  227. 

So  it  has  frequently  been  held  in  this  country  that,  "to  ob- 
tain admission  to  a  dwelling-house  at  night,  with  the  intent  to 
commit  a  felony  by  means  of  artifice  or  fraud,  or  upon  a  pre- 
tense of  business  or  social  intercourse,  is  a  constructive  break- 


ing. 


NICHOLS  V.  STATE. 


Ill 


inff,  and  will  sustain  an  indiotmont  charging  a  burglary  by 
breaking  and  entering."  Johnston  v.  Com.,  85  Pa.  St.,  54,  and 
82  Pa.  St.,  30G;  State  v.  Wilson,  1  N.  J.  Law,  439  (I  Amer. 
Dec.  210);  State  v.  IlaCaU,  4  Ala.,  643  (31)  Amer.  Dec,  314); 
Pish.  St.  Crimes,  §  312,  and  cases  there  cited.  The  same  was  hold 
in  Oiiio  under  a  statute  against  "  forcible  "  breaking  and  enter- 
ing. Dncher  v.  State,  18  Ohio,  308.  Put  it  is  claimed  that  in 
this  state  the  common-law  doctrine  of  constructive  breaking 
has  no  application  to  a  case  of  this  kind,  and  in  fact  is  super- 
seded by  statute,  except  in  so  far  as  it  is  rc-allirmed.  Thus: 
'■^  Any  xinlaxoful  entrij  of  a  dwelling-house  or  other  building, 
with  intent  to  commit  a  felony,  shall  he  (honed  ^  breaking  and 
entering  of  such  dwolling-iiouso  or  other  building,  within  the 
meaning  of  the  last  four  sections."  II.  S,,  sec.  4411.  Tiiis  sec- 
tion mei'ol}'  establishes  a  rnle  of  evidence  whereby  the  scope 
of  constructive  breaking  is  enlarged  so  as  to  take  in  'Uiny  un- 
lawful entry  of  a  dwelling-house  or  other  building  with  intent 
to  commit  a  felony."  See  State  v.  Kane,  03  Wis.,  202  (0  Am. 
Or.  P.,  99).  It  in  no  way  narrows  the  scope  of  constructive 
breaking,  as  unilcrstood  at  common  law,  but  merely  enlarges 
it  in  the  particulars  named.  In  all  other  respects  such  con- 
structive breaking  signifies  the  same  as  at  common  law.  It 
necessarily  follows  that  as  the  word  ''  break,"  used  in  section 
4410,  had  obtained  a  fixed  and  definite  meaning  at  common 
law,  when  applied  to  a  dwelling-house  proper,  or  other  build- 
ings within  the  curtilage,  the  legislature  must  be  presumed  to 
have  used  it  in  the  same  sense  when  therein  applied  to  other 
statutory  breakings.  Kc parte  Vincent,  20  Mn.,  145  (02  Amer. 
Dec.  714);  Pish.  St.  Crimes,  §§  7,  88;  JJucher  v.  State,  supra. 
That  is  to  say,  they  must  be  deemed  to  have  used  the  word 
as  understood  at  common  law  in  relation  to  the  same  or  a  like 
subject-matter.  We  must  hold  the  evidence  sufHcient  to  sup- 
port the  charge  of  breaking. 

3.  It  is  said  that  the  second  count  does  not  charge  the 
offense  to  have  been  committed  in  any  place  prohibited  by 
law;  "that  the  freight  and  express  car  of  the  American  Ex- 
press Company  "  mentioned  therein  does  not  describe  a  "  rail- 
road freight  car  or  passenger  car,"  mentioned  in  R.  S.,  sec. 
4410.  One  of  the  definitions  of  a  car  given  by  Webster  is: 
"A  carriage  for  running  on  the  rails  of  a  railway,"  illustrated 


"TV- 


112 


AMERICAN  CRIMINAL  REPORTS. 


by  the  picture  of  a  "railway  car,"  with  these  two  words  be- 
neath it.  Every  "  express  car  "  must  be  a  "  freight  car,"  and, 
to  make  it  certain,  the  charge  is, "  the  freight «/«/ express  car ; " 
but  it  does  not  follow  that  every  "railroad  freight  car"  is  an 
"  express  car."  JJoth  courts  and  juries  may  take  judicial  no- 
tice of  what  everybody  knows  respecting  the  common  inci- 
dents of  railway  and  express  carriage.  Boioncy  v.  Ilrndrie, 
46  Mich.,  408;  Queen  v.  Ruscoc,  8  Adol.  «fe  E.,  380.  Among 
these  is  the  fact  that  an  express  car  is  a  railroad  car.  We 
think  the  information  sufficiently  definite  in  this  regard,  espe- 
cially after  verdict.  Queen  v.  Stroulyer,  L.  R.,  17  Q.  13.  Div., 
327. 

4.  It  is  said  that  there  was  no  proof  that  the  car  mentioned 
•was  the  property  of  the  American  Ex|)ress  Company.  But 
the  question  was  collateral,  or  at  least  incidental,  to  the  real 
issue  involved,  and  absolute  proof  of  ownership  was  not  essen- 
tial. The  proof  of  the  exclusive  possession,  occupancy  and 
control  of  the  car  by  the  express  company,  therefore,  was  suf- 
ficient proof  of  ownership.  Ducher  v.  State,  18  Ohio,  315,  316; 
Jluling  V.  State,  17  Ohio  St.,  583;  State  v.  Parl-er,  16  Nev., 
79;  Marlcliam  v.  State,  25  Ga.,  52.  Especially  is  this  so  under 
our  statute.  R.  S.,  sec.  4621.  Otherwise  it  might  be  at  times 
very  difiicult,  if  not  impossible,  to  convict,  wiien  the  offense 
was  committed  in  the  freight  car  of  a  distant  company,  not- 
withstanding all  the  essential  facts  constituting  the  offense 
might  be  readily  established.  It  is  not  like  an  entire  fail- 
ure of  proof  of  title  of  real  estate,  as  in  Jad'son  v.  State,  55 
Wis.,  589.  The  jury  were  not  bound  to  find  beyond  a  reason- 
able doubt  the  ownership  of- such  car,  or  whether  it  belonged 
to  the  express  company  or  the  railwax'^  company,  and  the  in- 
structions asked  to  the  contrary  were  p    perly  refused. 

5.  During  the  argument  of  the  case  the  district  attorney  an- 
imadverted to  the  jury  upon  the  fact  that  the  prisoner  had 
not  been  sworn,  to  which  his  counsel  objected;  whereupon  the 
court  ruled:  "It  is  probably  competent  to  show  that  the  of- 
fense has  not  been  denied."  The  language  of  the  district  at- 
torney is  not  preserved  in  the  bill  of  exceptions.  It  merely 
appears  that  he  animadverted  upon  the  fact  of  his  not  being 
sworn;  and  the  court  thereupon,  in  effect,  indicated  that  he 
was  at  liberty  to  argue  to  the  jury  that  the  offense  had  not 


ppi 


\ 


GLOVER  V.  STATE. 


113 


been  denied.  It  was  a  fact  necessarily  known  to  the  jury  that 
tiio  prisoner  bad  not  been  sworn.  The  undisputed  evidence 
included  the  prisoner's  voluntary  admissions  of  guilt.  Under 
such  circumstances,  and  in  the  absence  of  just  what  wns  said 
by  tlie  district  attorney,  and  the  occasion  of  it,  wo  must  pre- 
sume that  something  occurred  or  was  said  which  rendered 
such  remark  proper.  Wil/iams  v.  State,  61  Wis.,  2'.)0;  I/(>f- 
mann  v.  State,  05  Wis.,  46;  lUntnn  v.  Cream  Cltif  li.  Co.,  65 
Wis.,  331-333;  Gallimjer  v.  Lake  Shore  Traffic  C(;.,  07  Wis., 
529. 

Other  exceptions  are  sufficiently  considered  in  what  has  al- 
ready been  said. 

The  judgment  of  the  circuit  court  is  affirmed. 


Glover  v.  State. 

(109  Ind.,  891.) 

Bribkry  :  Tonmahip  trustees  —  Contract  for  supplies  —  Evidence  —  Indict- 
ment —  Diqilicity. 

1.  Towxsmp   TRUSTKF.  —  Rkc'eivino    bribr.— An    indictment  against   a 

township  tiustfc.  whosu  duty  it  was  to  purchase  and  I'uriiish  scliool 
furnituio  and  sup|»lios.  based  upon  section  2009,  Rovisi'd  Statutes  of 
Indiana  of  1S81,  eh:ir;^ing  tiiat  on  a  certain  day  lie  "  unlawfully,  fe- 
loniously and  v'onuptly  accepted  from  one  Pollard  the  sum  of  $3,500 
in  money  as  a  hrilie,  and  to  infliieuco  hiin  as  such  tnistet!  in  the  dis- 
charge of  his  duties  as  such  trustee,  and  that  he  was  induenced  as 
such  trustee  by  the  at'cei)tance  of  the  money  to  enter  into  a  contract- 
with  said  I'ollard  for  tlie  purcliasi>  froui  him,  in  behalf  of  and  for  the 
use  of  the  .ichool  towusliip,  of  a  large  amount  of  scIidu!  riirniture, 
material  and  supplies  to  the  anmunt,  price  and  value  of  !?!(), 000,"  is 
snlHcient  on  motion  to  <]uash,  although  there  is  no  desciiption  of  tho 
property,  nor  statement  of  the  terms  of  the  contract,  nor  charge  that, 
the  property  was  not  worth  all  hi-  jiaid  for  it,  and  allliungh  it  is  not 
specifically  averred  that  tlu!  money  was  given  with  the  intent  of  in- 
ducing an  act  for  the  benefit  of  the  giver.i 

2.  CoNTiiAC'T  i"OR  sri'PLiKs  OBTAINED   BY  BRUJK.— It  is  not  material  to 

sucii  a  prosecution  whether  the  contract  was  in  writing,  and  such  a 
one  as  could  have  been  enforcetl  or  not;  the  question  being  not 
whether  the  accused  made  a  contract  binding  upon  the  township,  but 
whether  he  accepted  a  bribe  to  influence  his  oflicial  conduct. 


Vol.  VII -8 


'  See  note. 


114 


AMERICAN  CRIMINAL  REPORTS. 


8.  Evidence  — List  of  warrants  —  Considkhation.—  Upon  the  trini  of 
such  prosecution  a  letter  to  the  accuHed  contnininj?  a  list  of  warrants, 
and  asking  liim  if  they  were  signed  by  him,  iw  adniiHsibie  in  evi(k>nc.' 
in  connection  with  tlio  testimony  of  anotiier  that  tiie  accused  iiad 
shown  it  to  him,  and  stated  that  it  was  a  correct  list  of  tlie  orders  is- 
sued and  delivered  to  Pollard  (from  whom  ho  received  the  bribe),  ami 
that  they  were  so  issued  and  delivered  in  consideration  of  the  money 
he  had  received  from  said  Pollard. 

4.  iNWCTMEV'^  —  Mis.ioiNDER  — Motion  to  quash  — Election.— A  mo- 
tion to  quash  an  indictment  for  misjoinder  is  aildressed  largely  to  the 
sound  discretion  of  the  trial  court;  and,  where  it  does  not  clearly 
appear  on  the  face  of  the  indictment  that  di(Ter<'nt  and  distiiut crimes 
which  cannot  be  joined  are  charged  in  ditTerent  counts,  the  action  of 
the  trial  court  in  rei'using  to  (juash  the  indictment  for  misjoinder,  or  to 
compel  an  election  by  the  jjrosecutor,  will  be  sustained  on  a])]ieal. 

6.  Favorable  instruction.  — A  party  cannot  complain  of  an  instruction 
that  limits  the  scope  of  the  charge  against  him. 


£ 


From  Fountain  Circuit  Court. 

G.  W.  Paul^  J.  E.  Ihmphries  and  IF-^.  M.  liceves,  for  appel- 
lant. 

T.  F.  Davidson  and  //.  //.  Conleij^  prosecuting  attorney,  for 
tho  state. 

Zollars,  J.  Appellant  was  township  trustee  nnd  ex  officio 
trustee  of  the  school  township,  ilo  Wiis  convicted  upon  u 
charge  of  having  accepted  money  as  an  indiicenient  and  bribe 
to  enter  into  a  contract,  as  such  trustee,  for  the  ])urchase  of 
school  furniture  and  supi)lies  for  the  usu  of  the  township. 
There  were  originally  seven  counts  in  tiic  indictment.  The 
court  sustained  a  motion  to  (piash  as  totlie  fifth,  and  overruled 
it  as  to  the  others.  That  ruling  is  assigned  as  error.  The  ob- 
jections urged  in  argument  are  not  to  any  |iarticular  count,  but 
to  each  and  all,  upon  the  assumption  that  if  one  of  them  is  ba<l 
all  are  bad,  and  that  if  one  is  good  all  are  good.  Adopting 
that  assumption  as  being  correct,  we  pass  to  the  objections  to 
the  indictment  specifically  pointed  out. 

This  prosecution,  as  indicated  by  the  indictment,  is.  based 
upon  section  2009,  Kevised  Statutes  of  ISSl.  The  first  portion 
of  the  section  makes  it  a  crime  for  any  person  to  corruptly  give, 
or  olfer  to  give,  to  any  state  or  other  olllcer,  any  money  or 
valuable  thing  to  influence  his  action  in  any  matter  pending 
or  that  may  legally  come  before  hira.     The  latter  position  is, 


GLOVER  r.  STATE. 


115 


in  substance,  that  whoever,  holding  any  office  of  trust  or  profit 
under  the  hvws  of  this  state,  solicits  or  accepts  any  such  money 
or  va'uiibic  thing  to  influence  him  with  respect  to  his  official 
duty,  or  to  influence  his  action  in  any  matter  pending  or  that 
may  legally  come  before  him,  shall,  upon  conviction  thereof, 
bo  imprisoned  in  the  state  prison,  etc. 

It  is  charged  in  the  indictment  that  appellant  was  a  town- 
ship trustee,  and  ex  officio  trustee  of  the  school  township;  that, 
as  such  trustee,  it  was  his  duty  to  contract  for,  purchase  and 
furnish  to  the  school  township,  for  its  use,  school  furniture, 
materials  and  supplies;  that  on  the  5tii  day  of  September, 
ISS.'),  wiiile  holding  the  office  of  trustee  of  the  school  township, 
and  acting  as  sucii,  he  unlawfully,  feloniously  and  corruptly 
accc'|»to('  from  one  Pollard  the  sum  of  $3,r»()0  in  money  as  a 
bribe,  and  to  influence  him  (appellant)  as  such  trustee  in  the 
(lisoliiirgc  of  his  duties  as  such  trustee;  and  that  he  was  influ- 
enc(Ml  as  such  trustee,  by  the  acceptance  of  the  money,  to  enter 
into  a  contract  with  said  Pollard  for  the  purchase  fi'om  him, 
in  belialf  of  and  for  the  use  of  the  school  townsliip,  of  a  large 
auic  int  of  school  furniture,  material  and  supi)lies  to  the  amount, 
price  and  value  of  $10,000. 

As  we  understand  tlie  brief  of  appellant's  counsel,  three  ob- 
jections, and  only  three,  are  urged  to  the  indictment. 

The  first  is  that  there  is  no  statement  of  the  kind  of  furni- 
ture purchased;  that  the  terms  of  the  contract  are  not  spe- 
cilically  stated;  tliat  hence  it  is  not  sliown  iiow  or  wherein 
a))pellant  was  bribed  or  influenced;  and  that  it  does  appear 
tliiit  he  was  not  im|)roperly  influenced,  because  the  furniture, 
etc.,  contracted  for  was  wortli  all  he  gave  or  agreed  to  give 
for  it.  It  is  not  particular  as  to  the  kind  of  property  pur- 
chased. Tlio  purchase  of  the  property  is  not  tlie  (jraoainra  of 
tlie  offense  as  defined  by  the  statute.  It  is  entirely  immaterial 
as  to  the  amount,  quality  or  description  of  the  projierty  con- 
tracted for  and  pui'chased.  Tliat  which  the  statute  prohibits 
and  declares  to  be  a  crime  is  the  soliciting  or  accepting  of 
money  or  other  valuable  things  by  the  trustee  to  influence  him 
with  respect  to  his  official  dut}',  or  to  influence  his  action  in 
any  matter  pending  or  that  may  legally  come  before  him.  It 
is  not  a  crime  for  a  trustee  of  a  school  township  to  purchase 
school  furniture  for  and  on  behalf  of  the  coi-por^ioru  but  it  is 


116 


AMERICAN  CRIMINAL  REPORTS. 


a  crime  to  accept  mone}'^  to  influence  him  to  enter  into  such  a 
contract  or  make  such  a  purchase.  Tlie  vital  charge  presented 
by  the  indictment  to  be  met  by  appellant  was  that  he  had  ac- 
cepted monuy  to  influence  his  official  conduct.  If  he  could 
meet  that  charge  he  would  overthrow  the  case  against  hini ; 
and  to  enable  him  to  meet  that  charge  it  was  not  necessary 
that  he  should  be  furnished  wi'Ji  a  detailed  list  of  the  articles 
contracted  for  and  purchased,  nor  that  he  sliould  be  informed 
of  the  specifle  terms  of  tiie  contract.  lie  may  have  paid  the 
full  amount  in  cash  out  of  the  township  funds,  he  may  have 
issued  certificates  of  indebtedness  payable  at  dilTerent  times, 
or  he  may  have  purchased  the  articles  with  a  warrant;  but, 
manifestly,  none  of  these  supposed  terms  or  conditions  could 
be  important  or  material  to  him  in  pre|)aring  for  or  making 
his  defense.  Nor  does  it  make  any  dilforence  that  the  furni- 
ture, etc.,  contracted  for  or  purchased  was  of  the  value  agreed 
upon.  It  may  be  as  great  an  injury  to  the  township  to  pur- 
chase a  large  amount  of  furniture,  etc.,  not  needed  as  to  pay 
for  a  proper  amount  more  than  it  is  worth.  Did  appellant  ac 
cept  the  money  to  influence  his  ollicial  action,  and  in  contract- 
ing for  and  purchnsiny  the  furnitui'e,  etc.  ?  This  is  the  quest  ion 
to  be  settled.  J.i  he  did  he  is  guilty  under  the  statute,  without 
regard  to  the  particular  articles  of  the  purchase  or  the  terms 
of  the    t  ntract. 

We  may  as  well  notice  here  an  argument  urged  as  a  reason 
why  the  motion  for  a  new  trial  should  iiave  been  granted.  It 
is  argued  that,  because  the  contract  for  the  purcluiso  of  the 
furniture  is  not  shown  to  be  in  writing,  it  must  bo  assumed 
that  it  was  not;  that,  not  being  in  writing,  under  the  statute 
of  frauds  it  could  not  be  enforced;  and  that,  therefore,  appel- 
lant could  not  be  guilty  of  the  crime  delined  by  the  statute 
upon  which  this  prosecution  is  based.  It  is  not  material 
whether  the  contract  entered  into  could  have  been  enforced 
against  the  township  or  not.  If  it  was  already  cjiecuted,  and 
the  amount  paid  out  of  the  township  funds,  of  course  it  could 
not  be  material  whether  or  not  the  contract  was  in  writing, 
nor  could  it  be  material  in  any  event.  The  question  is  not 
whether  the  appellant  entered  into  a  contract  binding  upon 
the  to\.nship,  but  whether  he  accepted  the  bribe.  If  he  did 
he  cannot  be  heard  to  say  that  the  contract  was  not  enforce- 


GLOVER  V.  STATE. 


117 


able  against  the  township.  If  he  did  he  is  guilty  of  the  crime 
defined  by  the  statute.  Shirclijf  v.  State,  96  Ind.,  309 ;  State 
V.  McDonald,  100  Ind.,  233;  Woodward  v.  State,  103  Ind.,  127. 

It  is  insisted,  in  the  second  place,  that  the  indictment  is  bad 
because  it  is  not  specifically  averred  therein  that  Pollard  gave 
the  money  to  appellant  with  the  intent  of  inducing  him  to  do 
some  act  to  favor  and  aid  him  (Pollard).  We  do  not  think 
such  an  averment  is  necessary.  The  case  of  Hutchinson  v. 
State,  36  Tex.,  293,  cited  by  counsel,  is  not  authority  here,  for 
the  reason  tiiat  the  case  arose  under  a  statute  very  different 
from  tLat  upon  which  this  prosecution  rests. 

From  all  the  facts  stated  in  the  indictment  before  us  the  in- 
ference is  irresistible  that  Pollard,  or  some  one  for  whom  he 
was  acting,  was  to  and  did  profit  by  the  arrangement  with  ap- 
pellant. Such  an  inference  is  not  material  nor  important  here, 
nor  is  it  essential  that  aid  or  profit  to  Pollard,  or  those  for 
whom  he  may  have  acted,  should  be  charged.  It  is  a  crime 
under  the  statute  for  a  township  trustee  to  solicit  or  accept 
money  to  influence  his  official  conduct,  whether  those  from 
whom  it  is  solicited  or  received  are  profited  or  not.  The  in- 
dictment is  not  as  specific  and  formal  in  some  respects  as  the 
rules  of  good  pleading  requiie;  but,  taken  as  a  whole,  the  of- 
fense is  charged  substantially  in  the  language  of  the  statute, 
and  plainly  enough  informed  appellant  of  the  crime  with  which 
he  is  charged.  K.  8.  ISSl,  §§  1755,  1750;  State  v.  Anderson, 
103  Ind.,  170,  and  cases  there  cited;  Myers  v.  State,  101  Ind., 
379,  and  cases  there  cited;  Malone  v.  State,  li  Ind.,  219;  Mar- 
ble V.  State,  13  Ind.,  302. 

It  is  finally  contended,  in  the  third  place,  that  the  motion 
to  quash  sliould  have  been  sustained,  because  different  counts 
in  the  indictment  charge  distinct  and  different  offenses.  In 
one  of  the  counts  it  is  charged  that  appellant  accepted  §3,500 
from  one  Pollard,  i  .d  was  induced  by  such  acceptance  to  con- 
tract with  him  for,  and  purchase  from  him,  school  furniture, 
etc.,  for  the  township.  In  another  count  it  is  charged  that  ap- 
pellant accepted  from  one  Davis  the  same  amount  of  money, 
and  by  such  acceptance  was  induced  to  contract  for,  and  pur- 
chase from  him,  the  same  amount  of  school  furniture,  etc.  The 
dates,  the  amounts  accepted,  and  the  amounts  of  the  school 
furniture,  etc.,  are  the  same  in  each  count.     The  difference  is 


"•■i) 


118 


AMERICAN  CRIMINAL  REPORTS. 


that,  where  the  name  of  Pollard  is  used  in  some  of  the  counts? 
the  name  of  Davis  is  used  in  others.  It  is  not  certain,  from  an 
inspection  of  the  indictment,  that  the  several  counts  do  not,  in 
different  modes,  charge  the  same  offense  growing  out  of  the 
same  transaction.  There  are  doubtless  cases  where  the  court 
will  and  ought  to  quash  an  indictment,  where  different  and 
distinct  felonies,  and  such  as  cannot  be  joined,  are  charged  in 
different  counts  of  an  indictment.  But  those  are  cases  where 
it  is  made  certain  from  an  inspection  of  the  indictment  that 
different  and  distinct  felonies,  which  cannot  be  joined,  are 
charged  in  different  counts,  and  that  the  same  offense  is  not 
charged  in  the  several  counts  in  different  modes.  Whether  or 
not  an  indictment  will  be  quashed  for  the  reason  that  different 
felonies  are  charged  in  different  counts  is  much  in  the  discre- 
tion of  the  court,  for  the  reason  that  it  is  often  difficult  to  de- 
termine from  an  inspection  of  the  indictment  whether  such 
distinct  and  different  felonies  are  so  charged,  for  the  reason 
that  the  prosecutor  may  inform  the  court  in  advance  that  but 
one  offense  is  charged,  and  that  be  will  ask  a  conviction  for 
but  one  crime,  for  the  reason  that  the  court  may  compel  the 
prosecutor  to  elect  upon  which  count  he  will  proceed,  and  for 
the  reason  that  the  court  has  the  case  within  its  control,  and 
may  compel  the  prosecutor  to  elect,  after  the  evidence  may 
have  developed  the  fact  that  the  felonies  charged  in  different 
counts  are  different  and  distinct,  and  such  as  cannot  be  joined 
in  one  indictment.  See  Long  v.  State,  56  Ind.,  182;  JItlh  v. 
State,  52  Ind.,  187;  Grijith  v.  State,  36  Ind.,  406;  Bell  v.  State, 
42  Ind.,  335.  In  the  case  last  above  cited  the  statement  was 
approved  that  the  joinder  is  a  matter  of  prudence  and  discre- 
tion, resting  with  the  judge  to  exercise.  See,  also,  McGregor 
V.  State,  16  Ind.,  9;  Gandolpko  v.  State,  33  Ind.,  439. 

Mr.  Bishop,  in  his  work  on  Criminal  Procedure  (volume  1), 
at  section  425,  says:  "  AVhen  a  court  on  a  seasonable  applica- 
tion deems  that  the  due  order  of  judicial  proceeding,  or  the 
interest  of  the  party,  will  be  prejudiced  by  the  multiplicity  or 
ill  joinder,  it  will,  in  its  discretion,  quash  a  count  or  the  whole 
indictment,  or  order  separate  trials  on  the  counts,  or  compel 
the  prosecutor  to  elect  on  which  one  he  will  ask  for  a  verdict, 
as  the  exigencies  of  the  particular  case,  and  time  and  manner 
of  making  the  objection,  may  render  suitable.     The  fact  that 


ill 


GLOVER  V.  STATE. 


119 


the  court  will  interfere  to  prevent  an  abuse  of  the  right  of 
joining  counts  is  the  justification  of  the  various  expressions  in 
the  books  to  the  effect  that  such  or  such  joinder  is  permissible, 
and  such  another  not."  See,  also,  1  Bish.  Crim.  Proc,  §  446 
et  seq. 

In  the  case  of  Hamilton  v.  People^  29  Mich.,  173,  in  speaking 
of  a  misjoinder  in  an  indictment,  and  a  motion  to  quash  on 
that  ground,  it  was  said:  "Such  a  motion  is  addressed  to  the 
discretion  of  the  court.  It  ought  to  be  granted  where  the  con- 
fusion is  such  that  it  is  likely  to  interfere  with  the  means  of 
defending,  by  misleading  or  perplexing  the  prisoner  in  meet- 
ing the  case,  or  preparing  for  trial.  But  when  the  court  can 
prevent  any  mischief,  as  it  usually  can,  by  confining  the  proof 
to  the  single  transaction  on  which  the  prosecution  has  opened 
the  testimony,  or  by  compelling  an  election  in  the  outset,  no 
wrong  is  tlone  b}'  the  refusal  to  quash.  We  do  not  hold  that 
under  our  statute  requiring  a  motion  to  quash  in  lieu  of  a  mo- 
tion in  arrest,  or  to  save  a  ground  of  error,  such  a  motion  is 
always  discretionary.  But  such  a  motion  for  misjoinder  ap- 
pears to  be  discretionar}'.  1  Bish.  Crim.  Proc,  §  447;  Kimjv. 
Kiwjston,  S  East,  41." 

In  the  case  of  McGrcgg  v.  State,  4  Blackf.,  101,  this  court 
quoted  with  approval  the  following  taken  from  an  opinion  by 
Justice  Buller:  "On  the  face  of  an  indictment,  every  count 
imports  to  be  for  a  different  offense,  and  is  charged  as  at  differ- 
ent times;  and  it  does  not  appear  in  the  record  whether  the 
offenses  are  or  are  not  distinct.  But  if  it  appear,  before  the 
defendant  has  pleaded  or  the  jury  are  charged,  that  he  is  to  be 
tried  for  separate  offenses,  it  has  been  the  practice  of  the  judges 
to  quash  the  indictment,  lest  it  should  confound  the  prisoner 
in  his  defense,  or  prejudice  him  in  his  challenge  of  the  jur^'. 
.  .  .  But  these  are  only  matters  of  prudence  and  discretion. 
If  the  judge  who  tries  the  prisoner  does  not  discover  it  in  time, 
I  think  he  may  put  the  prosecutor  to  make  his  election  on 
which  charge  he  will  proceed."  See  McGregor  v.  State,  16 
Ind.,  9;  Emjleman.  v.  State,  2  Ind.,  91;  Mayiiard  v.  State,  14 
Ind.,  427. 

Inasmuch  as  the  prosecutor  may  be  put  to  an  election  as  to 
which  count  he  will  ask  a  conviction  upon,  it  seems  reasonable 
that  in  no  case  should  an  indictment  be  quashed  because  of 


r^  -mm 

mm 


120 


AMERICAN  CRIMINAL  REPORTS. 


misjoinder,  unless  it  clearly  appears,  upon  the  face  of  the  in- 
dictment, that  different  and  distinct  crimes  are  charged  in  dif- 
ferent counts,  which  cannot  be  joined  in  the  same  indictment, 
and  unless  the  prosecutor  declines  to  elect,  and  manifests  a 
purpose  to  insist  upon  a  conviction  upon  each  count.  In  the 
case  before  us  it  cannot  be  definitely  determined  by  an  exam- 
ination of  the  indictment  that  different  and  distinct  crimes, 
which  may  not  be  jomed  in  the  same  indictment,  are  ciuirged 
in  different  counts.  It  cannot  be  determined  from  such  an 
examination  that  the  statements  in  the  different  counts  are  not 
simply  different  modes  of  statement  to  meet  the  possible  proof. 
And,  for  aught  that  appears  from  the  record,  the  prosecutor 
may  have  announced  to  the  court  in  advance  that  he  should 
confine  his  proof  to  but  a  single  transaction,  out  of  which  the 
crime  charged  arose.  In  short,  the  record  does  not  show  that 
the  action  of  the  court  below  in  overruling  the  motion  to  quash 
in  any  way  prejudiced  the  rights  of  appellant. 

It  is  further  contended  by  appellant  that  he  requested  the 
court  to  require  the  prosecuting  attorney  to  elect  and  designate 
the  count  of  the  indictment  upon  which  he  would  proceed,  and 
that  the  court  refused  the  request,  to  his  jirejudice.  Here, 
again,  the  record  shows  nothing  which  makes  it  apparent  that 
the  court  should  have  granted  the  request,  and  required  such 
an  election  on  the  part  of  the  prosecuting  attorney.  In  the 
first  place,  it  does  not  appear  that  distinct  and  different  crimes, 
that  might  not  have  been  joined  in  the  same  indictment,  are 
charged  in  the  different  counts.  In  the  second  place,  whether 
or  not  such  an  election  will  be  ordered  is  a  matter  largely 
within  the  discretion  of  the  trial  court. 

In  the  case  of  McGregg  v.  State,  supra,  it  was  said :  "  Where 
there  are  two  or  more  counts  for  apparently  distinct  felonies, 
as  there  legally  may  be  in  many  instances,  it  cannot  be  a  mat- 
ter of  course,  as  plaintiff  in  error  contends  it  is,  for  the  defend- 
ant to  compel  the  prosecutor  to  elect  on  whicli  single  count  he 
will  go  to  trial.  If  that  were  the  case,  it  would  at  once  render 
nugatory  the  established  and  legal  practice  of  inserting  several 
counts  in  an  indictment  for  felony.  There  could  be  no  possible 
use  in  inserting  several  counts  if  the  defen(hint  could,  in  effect, 
have  them  all  but  one  struck  out  of  the  indictment.  The  truth 
is,  the  different  counts  in  an  indictment  for  felony  are  usually 


GLOVER  V.  STATE. 


121 


drawn  with  a  view  of  one  and  the  same  transaction,  and  the 
object  of  inserting  several  counts  is  that  some  one  of  them  may 
be  found  on  the  trial  to  be  in  accordance  with  the  evidence. 
It  sometimes  happens,  no  doubt,  that  tlie  prosecutor's  object 
in  inserting  several  counts  is  really  to  prosecute  tije  defendant 
for  separate  felonies  by  means  of  one  indictment.  This  lie  has 
no  right  to  do;  and,  when  it  is  ascertained  before  the  trial  tluit 
lie  intends  to  do  it,  the  court  will  defeat  his  design.  But  to 
enable  the  defendant  to  defeat  the  prosecutor's  intention  of  try- 
ing him  for  separate  offenses  it  lies  upon  the  defendant  to  show 
the  existence  of  such  an  intention.  It  was  the  want  of  proof 
of  such  intention  which  prevented  the  prisoner,  in  the  case 
before  us,  from  obliging  the  prosecutor  to  elect  upon  which  of 
the  counts  in  the  indictment  he  would  rely.  The  prisoner 
rested  his  motion  on  the  single  fact  that  there  were  several 
counts  in  the  indictment;  but  that  circumstance  was  no  evi- 
dence, of  itself,  that  the  prosecutor's  object  was  to  ])rovo  sepa- 
rate olfenscs.  It  does  not  appear  by  tiie  reco  "d  before  us  that 
the  court  was  furnished  with  any  information,  independently 
of  the  indictment,  that  separate  offenses  were  to  be  tried." 

We  have  quoted  thus  copiously  from  the  above  case  because 
what  was  there  said  is  ap|)licable  and  pertinent  here.  See, 
also,  S/tort  v.  Sfafe,  63  Ind.,  370;  Sinjiler  v.  State,  59  Ind.,  105; 
Bell  V.  State,  42  Ind.,  335;  Eiujleman  r.  State,  2  Ind.,  91;  State 
V.  Dvfoxir,  G3  Ind.,  567;  INIoore,  Crim.  Law,  §  189  et  seq.,  and 
cases  there  cited ;  1  Bish.  Crim.  Proc,  §  455. 

There  is  another  reason  why  appellate  courts  should  not  be 
swift  to  reverse  judgments  in  criminal  cases  on  account  of  a 
refusal  by  the  trial  court  to  put  the  prosecutor  to  an  election; 
and  that  is  that  that  court  may,  when  justice  requires  it,  com- 
pel an  election  after  it  may  be  developed  by  the  evidence  that 
the  different  counts  in  the  indictment  charge  different  and 
distinct  offenses  which  cannot  be  joined  in  the  same  prosecu- 
tion.    Long  V.  State,  56  Ind.,  182. 

There  was  no  error  in  overruling  the  motion  to  quash,  and 
the  motion  for  an  order  on  the  prosecutor  to  elect  to  proceed 
upon  some  particular  count  of  the  indictment.  The  evidence, 
too,  shows  clearly  that  the  purpose  was  to  charge  but  a  single 
offense  in  diil'erent  modes,  and  that  appellant  was  prosecuted 
but  for  a  single  offense.     The  whole  record  shows,  too,  that 


■STt 


'Bm^ 


122 


AMERICAN  CRIMINAL  REPORTS. 


:.- 1 


he  was  in  no  way  injured  by  the  refusal  of  the  court  to  quash 
the  indictment  on  account  of  the  different  modes  in  wliich  the 
crime  was  cliarged,  nor  by  the  refusal  of  the  court  to  order  an 
election  by  tlie  prosecutor.  What  we  have  said  disposes  of 
some  of  the  questions  argued  by  counsel  as  having  been  pre- 
sented by  api)elliint's  notion  for  a  new  trial. 

It  is  urged  llmt  ••  was  no  evidence  that  appellant  re- 
ceived ,*3,5(X)  as  .•'  (!■  >  'jment  to  enter  into  a  contract  for 
the  purchase  of  810,000  worth  of  scliool  furniture.  It  is  not 
material  whether  1  e  leooived  tl"^  exact  amount  of  83,500,  nor 
that  he  contracted  lor  exactly  i^l^^0()0  wortli  of  school  furni- 
ture. As  we  have  before  staled,  the  (jravamen.  of  the  otfenso 
defined  by  the  statute  is  the  receiving  of  money  by  an  olHcer 
to  influence  him  with  respect  to  his  oHicial  duty.  The  evidence 
is  abundant  that  appellant  received  from  Pollard  83,0(i0,  and 
in  consideration  therefor  is  ued  orders  against  the  township 
for  thousands  of  dollars  as  for  school  furniture,  and  for  which 
the  township  received  but  little  if  any  consideration,  and  that 
some  of  the  orders  passed  into  the  hands  of  Davis.  Having 
received  the  money  as  a  bribe,  and  having  violated  his  olHcial 
duty  in  consideration  thereof,  appellant  is  guilty  of  the  crime 
defined  by  the  statute,  whether  any  furniture  was  furnished 
to  the  tow  nship  or  not.  He  is  not  in  a  very  favorable  position 
to  contend  that  he  shall  go  acquit  because  it  is  not  shown  that 
the  township  received  value  for  the  fraudulent  debts  which  he 
contracted  through  bribery  and  olficial  dishonesty. 

Over  appellant's  objections,  the  court  admitted  in  evidence 
a  letter  from  Davis  Bros.,  of  Chicago,  to  him,  as  township 
trustee,  asking  him  whether  he  had  signed  certain  warrants 
against  the  township,  giving  a  list,  with  the  dates,  amounts, 
and  when  due,  and  requesting  an  answer  to  be  indorsed  upon 
the  statement,  and  that  as  thus  indorsed  the  statement  should 
be  returned.  That  paper,  in  connection  wiUi  the  testimony  of 
the  witness  Bingham,  was  competent  evidence.  One  of  the 
questions  in  the  case  was  whether  appellant  had  done  any 
official  act  in  consideration  of  the  money  received  from  Pol- 
lard. The  paper  or  letter  from  Davis  Bros,  contained  a  list  of 
township  warrants  issued  by  appellant  as  township  trustee, 
amounting  to  about  8»,000.  That  statement  appellant  showed 
to  Bingham,  and  told  him  that  it  was  a  correct  statement  of 


GLOVER  V.  STATE. 


123 


the  orders  ho  had  issued  and  delivered  to  Pollard,  and  that 
they  were  so  issued  and  delivered  in  consideration  of  the 
money  he  had  received  from  Pollard,  The  paper  was  com- 
petent evidence,  not  as  a  statement  from  Davis  Ihos.,  but  be- 
cause appelhint  adopted  the  statement  of  the  warrants  thereon 
as  his  statement  of  the  warrants  which  he  had  dishonestly 
issued. 

Appellant,  through  his  counsel,  also  contends  that  the  court 
below  erred  in  allowing  tlie  witness  Bingham  to  testify  to  the 
contents  of  a  written  contivict  between  him  and  Pollard  for 
the  purchase  of  $2,200  worth  of  school  furniture.  For  the 
testimony  of  the  witness  as  to  the  contents  of  tlie  contract 
we  are  referred  to  the  record  from  page  5G  to  page  150,  with 
tlie  statement  that  "  the  contract  spoken  of  by  the  witness 
forms  a  large  part  of  the  evidence."  This  relcience  and  state- 
ment, with  the  further  statement  that  the  witness  was  allowed 
to  give  the  contents  of  the  contract,  is  the  sura  of  the  argu- 
ment upon  the  alleged  error  of  the  court  in  admitting  the 
testimony.  iS'o  ])articular  jiage  or  pages  of  the  record  are 
pointed  out  where  the  objectionable  evidence  may  be  found. 
Neither  the  brief  upon  the  alleged  error,  nor  tiie  reference  to 
the  record,  is  in  compliance  with  the  rules  of  this  court.  As 
counsel  have  not  referred  us  to  any  i)articular  pagp  or  pages 
where  the  objectionable  testimony  may  be  found,  we  assume 
that  they  do  not  regard  it  as  of  much  importance. 

It  is  still  further  contended  by  appellant's  counsel  that  the 
court  erred  in  refusing  instructions  asked  by  appellant.  This 
contention  is  met  by  counsel  for  the  state  with  the  contention, 
on  his  part,  that  there  is  no  available  error  in  the  refusal,  be- 
cause the  instructions  were  not  signed  by  appellant  or  his 
counsel.  The  instructions  do  not  appear  to  have  been  so 
signed,  and  hence  we  cannot  disregard  the  contention  of  coun- 
sel for  the  state  without  disregarding  the  statute,  and  former 
decisions  by  this  court,  basetl  upon  and  in  construing  the  stat- 
ute. K.  s!  1881,  §§  533,  1823;  Chlciujo,  etc.,  li.  B.  Co.  v. 
Ilnhjes,  105  Ind.,  398 ;  Ilutchimon  v.  Leincke,  107  Ind.,  121 ; 
lieattij  V.  Brummctt,  Oi  Ind.,  70. 

The  objections  made  to  the  first  instruction  given  by  the 
court  are  that  therein  the  court  told  the  jury  that  appellant 
wiis  charged  with  having  accepted  money  from  Pollard  to  in- 


'?)  ■■..; 


124 


AMERICAN  CRIMINAL  REPORTS. 


ilM 


fluence  his  (appellant's)  action  in  relation  to  issuing  certain 
orders  of  the  township.  It  is  said  by  appellant's  counsel  that 
in  one  of  the  counts  he  was  charged  with  having  received  the 
money  from  Davis,  and  that,  therefore,  the  ir.etruction  is 
erroneous.  It  is  difhcult  to  see  how  appellant  could  be  injured 
by  an  instruction  which  limits  the  scope  of  the  charge  against 
him.  It  is  true  that  it  is  not  charged  in  terms  in  the  indict- 
ment that  appellant  accepted  the  money  to  influence  his  action 
in  relation  to  issuing  township  orders,  but  it  is  charged  that  he 
received  it  as  a  bribe  to  influence  him  in  the  discharge  of  his 
official  duty  as  township  trustee,  and  to  influence  him  to  enter 
into  a  contract  for  the  pui-cliaso  of  school  furniture.  The  jury 
had  the  indictment  before  them,  and  it  cannot  be  said  that  the 
instructions,  in  connection  with  other  instructions  given  by  the 
court,  misled  the  jury  as  to  the  issue  to  bo  tried.  And,  if  it 
was  shown  by  the  evidence  that  appellant  accepted  the  bribe 
from  Pollard  to  influence  him  to  issue  fraudulent  township 
warrants  on  the  pretense  of  purchasing  school  furniture,  he 
might  be  convicted  under  the  indictment  charging  him  with 
having  accepted  the  money  to  influence  his  olllcial  action,  and 
to  influence  him  in  making  a  |)urchase  cf  school  furniture. 
As  we  have  before  stated,  the  important  thing,  and  the  yrav- 
amen  of  the  offense,  is  the  accepting  of  the  money  to  influence 
his  official  action.  It  was  not  material  that  the  money  should 
have  been  paid  over  to  appellant  before  he  entered  into  a  con- 
tract or  issued  the  warrants.  It  plainly  enough  appears  from 
the  evidence  that,  if  the  money  was  not  received  by  the  ap- 
pellant before  or  at  the  time  the  arrangement  was  made  be- 
tween him  and  Pollard,  it  was  received  verv  soon  thereafter, 
and  in  pursuance  of  their  arrangement  and  agreement. 

AVe  are  satisfled  from  an  examination  of  the  whole  record 
that  the  case  was  fairly  tried,  and  that,  considering  the  case 
as  made  by  the  evidence,  the  jury  were  very  lenient  with  ap- 
pellant in  fixing  his  imprisonment  at  but  two  years.  It  is 
very  clearly  a  case  where  the  judgment  should  not  be  reversed 
upon  technical  errors.    Judgment  affirmed. 


Note.— In  People  v.  Sharp,  107  N.  Y.,  437,  which  was  an  appeal  from 
a  judgment  of  the  general  term  of  the  supreme  court  in  the  first  judicial 
department,  entered  upon  an  order  made  September  20, 1887,  which  affirmed 
a  judgment  of  the  court  of  oyer  and  leriulner  in  and  for  the  city  and  county 


V    t 


GL0V5R  I'.  STATE. 


125 


of  New  York,  entered  upon  a  verdict  of  guilty,  the  rulings  of  the  court  of 
appeals  on  tiie  many  points  presented  are  so  well  fortified  by  authorities  and 
supported  by  good  sense  that  we  would  give  the  opinion  in  full  but  for  the 
fact  that  the  court  of  appeals  reports  are  in  the  hands  of  so  many  lawyers 
that  the  fifty  payos  which  the  decision  would  occupy  may  be  used  to  better 
advantage  to  the  general  profession  by  giving  cases  from  reports  not  so 
easily  attainalilo.  Tlie  points  presented  in  the  Sharp  Case  and  the  rulings 
thereon  are  in  substance  as  follows: 

Witness  —  Testimony  before  legislative  committee  —  Constitutional  law. — 
Defendant,  indicted  for  bribery  under  tlio  New  York  statntcH,  had  previ- 
ously given  testimony  before  the  railroad  committee  of  the  New  York  state 
senate,  which  committee,  by  special  resolution,  had  been  re-juired  to  in- 
vestigate charges  of  bribery  in  connection  with  the  Broadway  Surface  Rail- 
road. Penal  Code  of  New  York,  section  70,  makes  it  compulsory  upon  per- 
sons concerned  in  bribery  to  attend  and  testify  "  upon  any  trial  ...  or 
j>ii*cs//V/rt//oH,"  but  i)rotccts  them  by  deciaiing  that  their  testimony  shall 
not  be  used  against  them  in  any  subse(iuent  proceeding,  civil  or  criminal. 
Held,  that  such  statute  is  not  in  conflict  with  constitution  of  Now  York, 
article  1,  section  0,  providing  that  "  no  ju-rson  sliall  i-o  compelled,  in  any 
criminal  case,  to  be  a  witness  against  hinisclf.'"  and  is  constitutional. 

Evidence  —  Before  Icf/islatire  committee  —  Admissihilif;/  of.— An  inquiry 
before  such  a  committee  is  an  "investigation"  witiiin  tito  meaning  of 
Penal  Code,  section  79,  which  provides  tliat  a  person  udending  against  any 
provision  of  any  foregoing  section  of  tliis  code  relating  to  bribery  is  a  com- 
petent witness  againjrt  another  person  so  offending,  and  may  be  compelled 
to  attend  and  testify  upon  anj-  trial,  hearing,  prot.-eedin;^  or  investigation, 
in  the  same  nuumer  as  any  other  person ;  but  the  testimony  so  given  shall 
not  be  used  in  any  prosecution  or  jn'oceeding,  civil  or  criminal,  against  the 
person  so  testifying.  A  i)erson  so  testifying  to  the  giving  of  a  l)ribe  which 
has  been  accepted  shall  not  thereafter  be  liable  to  jn-osecution,  indictment 
or  punishment  for  bribery,  and  may  jjlead  or  prove  the  giving  of  the  testi- 
mony accordingly  in  bar  of  such  indictment  or  jjrosecution,"  and  evidence 
given  before  it,  being  cf>mi)ulsory,  is  inadmissildo  against  the  person  testi- 
fying upon  any  subse()nent  trial. 

Briber)/ — Motive  —  Erid  nve  of  former  attempt. —  Up<m  defendant's 
trial  for  bribery  in  connection  with  the  Tlroadway  Surface  Railroad,  the 
prosecntit)!!,  in  order  to  show  jnotivc,  introdncred  evidence  that  defendant 
had  on  a  previous  occasion  offered  a  l)ribe  to  a  clerk  of  .a  senate  committee 
for  the  piH'posc  of  inducing  him  to  alter  a  former  railroad  bill.  Held,  that 
the  admission  of  sudi  evidence  wiis  error. 

Opinion  evidence — Iteeeption  of  tn-ihe. —  Upon  defendant's  trial  for 
bribery  of  a  certain  alderman  of  the  city  of  New  York,  in  connection  with 
the  Broadway  Surface  Railroad,  .another  alderman  testified  that  he  had  re- 
ceived a  sum  of  money  which  he  tlionuld  was  for  the  railroad.  Held,  that 
the  opinion  or  supposition  of  the  witness  was  inadmissilde. 

Evidence  —  Prrsnmption  from  Jliijlif. —  Persons  .alleged  by  the  state  to 
have  been  co-conspirators  with  the  ilefend;mt,  and  who  were  jointly  in- 
dicted witii  him  were  intended  to  be  sulijicenaed  as  witnesses.  One  only 
was  served,  and  he  out  of  the  jurisdiction.    The  state  was  permitted  to 


»*    1 


126 


AMERICAN  CRIMINAL  REPORTS. 


prove  tlie  service  upon  that  defendant,  and  the  fnihire  to  find  the  others, 
over  the  objection  of  tiie  defendant  thnt  the  only  motive  for  the  proof  was 
to  raise  a  presumption  of  his  guilt  from  t.ie  flight  of  the  witnesses.  Held, 
that  the  admission  of  such  testimony  was  error. 


People  v.  Flynn. 

(73  Cal.,  511.) 

BcRaLAKY:  Possession  of  stolen  projwrtjj  —  Instructions. 

1.  BuRaLARY  —  Possession  of  stolen  property.— The  finding  of  recent 

stolen  property  in  the  possession  of  a  defendant  is  not  sufficient  to 
support  a  conviction  for  burglary  without  otiier  corroborating  circum- 
stances.' 

2.  Practice  —  Instructions  —  Credibility  of  witness.— An  instruction 

that  the  jury  might  reject,  wholly  or  in  part,  the  testimony  of  a  wit- 
ness who  had  "  wilfully  testified  falsely  in  regard  to  any  one  person 
or  any  one  particular  fact  in  the  case,"  was  objected  to  on  the  ground 
that  it  should  only  have  told  the  j\iry  to  distrust  or  reject  the  testi- 
mony of  a  witness  who  had  wilfully  sworn  f.alsely  "  as  to  a  material 
point  in  the  case."  Held  that,  under  the  rule  "  tliat  a  witness  false  in 
one  part  of  his  testimony  is  to  be  distrusted  in  others'"  (Code  Civil 
Proc.  Cal.,  §  2001,  subd.  3),  the  instruction  was  not  erroneous. 

3.  Charging  as  to  fact. — The  mere  statement  in  an  instruction  that 

there  is  a  conflict  in  the  evidence  in  certain  resjjects  cannot  be  re- 
garded as  an  expression  of  an  opinion  upon  the  weight  of  evidence  or 
a  charge  with  respect  to  matters  of  fact,  in  violation  of  the  constitu- 
tion of  California,  article  C,  section  19,  providing  that  "judges  shall 
not  charge  juries  with  respect  to  matters  of  fact,  but  may  state  the 
testimony  and  declare  the  law." 

4.  Re.vsonable  doubt. —  An  instruction  that  the  jury  must  be  "  satisfied  " 

of  defendant's  guilt  is  not  erroneous  because  it  omits  the  words  "  be- 
yond a  reasonable  doubt,"  when  the  whole  of  the  instructions,  taken 
together,  clearl}'  inform  the  jury  that  they  cannot  convict  the  defend- 
ant unless  tliey  are  satisfied  of  his  guilt  beyond  a  reasonable  doubt. 

6.  Sufficiency  of  evidence. —  In  a  prosecution  for  burglary,  although 
the  fact  that  defendant  was  seen  near  the  place  where  and  about  the 
time  when  the  burglary  was  committed  is  a  material  circumstance,  a 
conviction  based  upon  circumstantial  evidence  may  besupiwrted  with- 
out it. 

6.  Request  by  accused.— Omissions  by  the  court  to  instruct  the  jury 
"  that  no  presumption  of  guilt  follows  from  [defendant's]  failure  to 
testify  on  his  own  behalf,"  and  to  define  the  phrase   "reasonable 

'See  note. 


i 


^ 


PEOPLE  V.  FLYNN. 


127 


doubt,"  ns  used  in  some  of  tlie  instructions,  nre  not  L-noncous,  wliero 
defendant's  counsel  did  not  request  such  instructions  at  tiie  proper 
time. 
7,  Skntknxe  — Prior  convictions  —  A  defendant  on  trial  for  burglary 
pleaded  guiltj'  to  the  cliorge  of  "prior  convictions,"  and  tlie  court  did 
not  instruct  the  jury  as  to  such  prior  convictions,  nor  did  it  ai)pear 
fiom  tlie  record  that  any  reference  was  made  to  them  during  the 
trial.  The  jury  found  the  defendant  guilty  of  burglary  in  tlio  first 
degree,  but  did  not  find  in  reference  to  the  prior  convictions,  which  be- 
fore judgment  were  withdrawn  on  motion  of  tlie  district  attorney,  and 
the  court  only  sentenced  the  prisoner  to  imprisonment  for  ten  instead 
of  fifteen  years.  Held,  that  it  must  be  presumed  that  the  clerk  had 
obeyed  the  law  (Penal  Code  Cal.,  g  1003)  and  omitted  to  read  the  prior 
convictions  to  tlie  jury,  and  that  the  court  in  view  of  their  withdrawal 
hud  disregarded  them  in  considering  the  sentence. 

Commissioners'  decision.     In  bank. 

Ai)i)cal  from  Superior  Court,  City  and  County  of  San  Fran- 
cisco; T.  K.  AVilsoM,  Judge. 
Indictment  for  burglary, 

Geo.  A.  Knhjht,  for  appellant. 

Gca.  A.  Jolmmi),  attorney -general,  for  the  state. 

I'ki.ciiku,  C.  C.  Tlie  defendant  was  charged  with  the  crime 
of  burglary,  committed  on  the  3d  day  of  .May,  IS'^C*,  In'  break- 
ing and  entering  the  saloon  of  one  Clement  Dixon,  in  the  city 
of  San  Francisco,  with  intent  to  commit  larceny.  lie  was 
tried  and  convicted  of  burglary  of  the  first  degree,  and  sen- 
tenced to  sulfcr  imprisonment  for  ten  years,  lie  moved  for  a 
new  trial,  and  has  a})poaled  from  the  order  denying  his  motion 
and  from  the  judgment.  The  appellant  makes  ten  points  for 
the  reversal  of  the  judgment,  the  first  five  of  them  relating  to 
the  evidence,  which,  it  is  claimed,  did  not  justify  the  verdict. 

It  was  clearly  proved  that  a  burglary  was  committed  at  the 
time  and  place  named  in  the  information,  and  it  was  not  nec- 
essarv.  in  order  to  establish  the  del'endant's  guilt,  that  any  of 
the  witnesses  should  have  actually  seen  him  break  and  enter 
the  |)rcmises,  or  should  have  seen  him  in  the  vicinity  of  the 
])remises  about  the  time  the  burglary  was  committed.  It 
rarely  happens  that  an  offense,  like  that  here  complained  of, 
can  be  proved  by  witnesses  who  saw  and  recognized  the  de- 
fendant in  the  act,  and  resort  must,  therefore,  ordinarily  be 
had  to  circumstantial  evidence.     And  the  fact  that  one  was 


■.' ' .« 


128 


AMKRICAN  CRIMINAL  KEFOUTS. 


seen  near  the  plnce  wlioro  a  burglary  was  committed,  and 
about  the  time  of  its  commission,  may  or  may  not  b(«  a  circum- 
stance tcMtlin;,'  to  show  guilt;  but  it  cannot  be  necessary  in 
every  case  of  burglary  to  prove  that  defendant  was  so  seen 
before  a  conviction  can  be  had.  Here  there  was  some  evidence 
tending  to  connect  the  defendant  with  the  commission  of  the 
ofTerse  charged.  A  considerable  sum  of  money  was  stolen, 
and  one  of  the  pieces  of  money  taken  was  found  in  the  jwsses- 
sion  of,  and  was  claimed  by,  the  defendant  when  ho  was  ar- 
rested on  the  next  day.  The  court  properly  instructed  the 
jury  as  to  the  possession  of  recently  stolen  property,  and  as  to 
the  necessity  of  other  corroborating  circumstances  l)eing  shown 
before  one  having  such  jiossession  could  be  found  guilty.  It 
is  unnecessaiy  to  detail  the  evi<lence  at  length.  The  (piestion 
was,  did  the  defendant  commit  the  crime  charged  against  him  i 
That  was  a  cjuestion  of  fact  for  the  jury,  and,  as  the  jury  found 
that  he  did  cc^mmit  it,  we  cannot  say  that  the  judgmentsliould 
be  set  aside  because  the  linding  was  not  warranted. 

It  is  next  contemled  that  sundry  errors  were  committed  by 
the  court,  to  the  manifest  prejudice  of  the  defemhmt.  The 
defendant  did  not  take  tiie  stand  as  a  witness  in  his  own  behalf, 
and  the  court  did  not  instruct  the  jury  in  reference  to  his  fail- 
ure to  tlo  so.  It  is  claimed  that  "it  was  the  duty  (jf  the  court 
to  charge  the  jury  that  no  presumption  of  guilt  followed  from 
his  failure  to  testify  in  his  own  behalf,  and  that  they  could  not 
consider  his  failure  to  testify  in  arriving  at  a  verdict."  It  does 
not  appear  fi'om  the  bill  of  exceptions  that  any  such  instruc- 
tion was  asked.  If  counsel  for  defendant  desii-ed  such  an  in- 
struction to  be  given,  they  should  have  a.sked  it  at  the  pro])cr 
time;  and,  as  they  Jailed  to  do  that,  they  cannot  ncnv  be  heard 
to  complain.  J'cojtle  v.  J/aun,  44:Ci\].,100-  J'cojilcv.  A/i  Wee, 
48  Cal.,  2:31);  J'cojj/e  v.  JI'id%  13  Pac.  Kep.,  Hi). 

In  a  portion  of  its  charge  to  the  jury  the  court  used  the  fol- 
lowing language:  "And  if  you  are  satislied  that  the  defend- 
ant is  guilty  of  the  ofl'ense  charged,  and  that  he  committed  it 
in  the  night-time,  that  is,  between  sunset  of  one  day  and  sun- 
rise of  the  next,  you  should  find  him  guilty  of  burglary  in  the 
first  degree."  It  is  claimed  that  this  instruction  was  erroneous 
because  it  omitted  the  words  "  beyond  a  reasonable  doubt," 
and  left  the  jury  to  be  bimi)ly  "satisfied"  of  the  defendant's 


give 


PEOPLE  V.  FLYNN. 


120 


o-nilt,  no  inattpi'  wlictlicr  tlipy  ontortainod  a  i'c.'\sonal)lo  douUt 
of  Ills  ^iiilt  Of  not.  T.ooking  at  tlic  wliolo  cluu'<iO,  it  will  be 
loiiiul  lliat  the  words  "  hoyi»n(l  a  reasonable  doubt  "are  ro- 
pcatod  some  (ifteen  times.  For  example,  the  court  told  the 
jiirv:  *Vlt  devolves  upon  the  pi'oseeution  to  estal)Iisli  the  f^uilt 
of  the  dei'eiidant  to  your  satisfaction,  beyond  a  reasonal)le 
df)ul)t,  before  you  are  authorized  to  find  a  verdict  a<»'ainst  him.'' 
"All  ])('rsons  charged  with  a  criminal  offense  are  |)vcsunied  to 
be  innocent  until  tiie  jury  are  satisfied  beyond  a  reasonable 
doubt  of  their  ^niilt.''  "  If  yon  have  a  reasonable  doubt  as  to 
the  guilt  or  innocence  of  the  defendant,  you  should  give  1  iui 

e  i)cnelit  of  the  doubt,  and  acquit  him."  ''  You  must  bo 
isfi(  (1  in  the  case,  beyond  a  reasonable  doubt,  from  all  the 
facts  ami  circumstanc(>s.  of  this  defendant's  guilt,  before  you 
will  be  authorized  to  bring  in  ix  verdict  against  him.""  "  If  you 
entertain  a  reasonable  doubt  of  his  guilt,  however,  you  should 
give  him  the  benefit  of  the  doubt,  and  acquit  him." 

And  the  very  next  sentence  after  that  complained  of  is  as 
follows:  "  If  you  are  satisfietl  beyond  a  reasonable  doubt  that 
he  is  gnilty  of  burglary,  but  are  not  satisfied  l)eyond  a  reason- 
able doubt  that  it  was  committed  in  the  night-time,  you  should 
give  him  the  benefit  of  that  doubt,  and  find  him  guilty  of  burg- 
lary in  the  second  degree." 

Taking,  then,  the  whole  charge,  and  reading,  as  we  must, 
the  different  parts  of  it  together,  it  appears  that  the  jury  were 
clearly  told  that  they  could  not  fiiul  the  defendant  guilty  of 
burglary  of  the  first  degree,  or  at  all,  unless  they  were  satis- 
fied of  his  guilt  beyond  a  reasonable  doubt.  "We  are  unaule, 
therefore,  to  see  how  the  defend.'int  could  have  been  ])rejudiced 
by  the  part  of  the  charge  objected  to. 

Tlie  court  also,  in  its  charge,  used  these  words:  "If  you  arc 
satisfied  that  any  witness  has  wilfully  testified  falsely  in  regard 
to  any  one  person,  or  any  one  particular  fact  in  the  case,  then 
you  are  authorized  to  distrust  his  or  her  testimony  in  all 
particulars;  that  is,  you  may  reject  it  entirely  if  you  choose 
to  do  so,  or  N'ou  may  reject  it  in  part  and  receive  it  in  part,  as 
you  Ilnd  it  contradicted  or  sustained  by  other  testimony,  as 
you  are  satisfied  of  its  truth  or  falsity."  It  is  claimed  that  the 
instruction  was  erroneous;  that  it  should  only  have  told  the 
jury  that  they  were  authorized  to  disliust  or  reject  the  testi- 
VoL.  vil  -  9 


130 


AMERICAN  CRIMINAL  REPORTS. 


mony  of  a  ^vitness  who  had  wilfully  sworn  falsely  •*  as  to  a 
material  point"  in  the  case.  We  think  the  instruction  was 
properly  given.  The  rule,  as  stated  in  the  Code  of  Civil  Pro- 
cedure, is  "  that  a  witness  false  in  one  part  of  his  testimony  is 
to  be  distrusted  in  others."  Sec.  L^OGl,  subd.  ?>.  If  a  witness 
has  wilfully  testified  falsely  as  to  "  any  one  person  or  any  one 
]iarticular  fact  in  the  case,"  his  testimony,  wo  think,  comes 
clearly  within  the  rule;  and  we  see  nothing  in  People  v.  Spragiie, 
53  Cal.,  401,  in  conllict  with  this  view.  See  People  v.  Tread- 
well,  09  Cal,  23S. 

The  court  further  stated  to  the  jury  that  "  there  is  some 
conflict  in  the  testimony  in  regard  to  where  this  money  was 
obtained,  when  it  was  obtained,  and  whore  he  was  a  part  and 
portion  of  the  night."  This  is  comi)lainod  of  as  being  a  charge 
with  respect  to  matters  of  fact,  in  violation  of  sc(;tion  19  of 
article  0  of  the  constitution.  "We  do  not  think  the  objection 
well  taken.  Judges  may  state  the  testimony  and  declare  the 
law,  but  must  not  express  an  opini(jn  upon  the  weiglit  of  the 
evidence.  "We  are  unable  to  see  how  the  mere  statement  that 
there  is  a  conflict  in  the  evidence  in  certain  resi)ects  can  be 
regarded  as  the  expression  of  an  opinion  ujjon  the  weight  of 
the  evidence,  or  a  chai'ge  with  respect  to  mattei's  of  fact.  h\ 
People  V.  Caxei/,  (i.j  Cal.,  2(il;  3  I'ac.  Kep.,  (STl,  citeil  by  appel- 
lant, the  court  instructed  tlie  jury  that  "the  testimony  in  the 
case  shows  that  the  defendants,"  etc.  This  was  held  to  bo  er- 
roneous, and  the  court  said:  "To  state  the  testimouN- is  one 
thing.  To  declare  what  it  shows  is  another  and  very  ditl'erent 
thing.  It  is  for  the  jury  exclusively  to  determine  what  the 
testimony  shows."     That  case  is  not  in  point  here. 

The  court  in  its  charge  nowhere  dciiued  or  stated  what  is 
meant  by  the  words  "  reasonable  doubt,"  and  this  failure  is 
asi^igned  as  error.  No  specific  insiruction  upon  the  subject 
was  asked  by  the  defendant.  Possibly  he  and  his  counsel  then 
thought  that  the  phrase  was  so  familiar  that  no  delinition  was 
required.  However  this  may  have  been,  the  fact,  as  we  have 
seen,  that  they  failed  to  ask  for  the  instruction  is  a  full  answer 
to  the  point  which  they  now  make. 

The  last  point  to  be  considered  relates  to  certain  charges  of 
prior  convictions  found  in  the  information.  Defendant  was 
charged  with  burglary,  and  with  prior  convictions  of  robbery 
and  burglary.     "When  called  upon  to  plead,  he  "  acknowledged 


oree. 


PEOPLE  V.  FLYNN. 


131 


the  prior  convictions,  and  pleaded  not  guilty  to  the  charge  in 
tlie  information."     After  the   jury  was  impaneled  *'  the  in- 
formation charging  the  defendant  with  the  crime  of  burglary 
was  road,  and  his  plea  of  not  guilty  duly  stated.     The  court 
did  not  instruct  tiie  jury  in  relation  to  the  charge  of  prior  con- 
victions, and,  so  far  as  appears,  no  reference  was  made  to  that 
charge  by  any  one  during  the  whole  progress  of  the  trial.    The 
jury  found  tiie  defendant  guilty  of  burglary  in  the  first  de- 
gree, but  did  not  luid   in  reference  to  the  prior  convictions. 
IJefore  judgment  was  pronounced  the  prior  convictions  were 
withdrawn,  on  motion  of  the  district  attorney.     It  i3  claimed 
that,  as  the  information  contained  charges  of  prior  convic 
tions,  these  charges  must  have  been  read  to  the  jury,  and  that 
they  impeached  the  characterof  derenihint,and  without  doubt 
prejudiced  the  jury  against  him,  to  his  injury.    We  see  nothing 
to  indicate  that  the  charges  of  prior  convictions  were  read  to 
the  jury.     Section  l(»9;3of  the  Penal  Code  provides:     "If  the 
intlictment  or  information  be  for  felony,  the  clerk  must  read  it 
and  state  the  i)lea  of  the  defendant  to  thd  jury;  and  in  cases 
where  it  cliarges  a  previous  eonviction,  and  the  ilefendant  has 
confessed  the  same,  the  clei'k  in  reading  it  shall  omit  therefrom 
all  ti):it  relates  to  such  previous  convictions."     As  the  defend- 
ant, when  arraigned,  confessed  the  ])revious  convictions,  we 
must  i)resume  that  tiie  clerk  obeved  the  law  and  omitted  the 
reading  of  all  that  related  to  those  charges.     Tlie  court  tnight 
have  sentenced  tlie  defendant   to   imprisonment   for   fifteen 
years.     Tiie  extreme  ])enalty  was  not  pronounced,  but  the  sen- 
tence was  for  ten  vears  onlv.    As  the  previous  convictions  were 
witiidrawn,  it  r.iust  be  presumed  that  the  court  paid  no  atten- 
tion to  them  in  pronouncing  the  judgment,  and  tliat  the  sen- 
tence would  have  been  the  same  if  the  previous  convictions 
had  not  been  charged  in  the  information. 

We  conclude  from  an  examination  of  the  whole  record  that 
the  judgment  and  order  should  be  alHrmed. 

Wo  concur:    Footk,  C. ;  IIaink,  C. 

Hi/  the  Cunrt. —  For  the  reasons  given  in  the  foregoing  opin- 
ion the  judgment  and  order  are  allirnied. 

Note.—  On  trial  for  burglary,  evidence  that  tlie  defendant  came  into  the 
Btore  of  witness  un  the  morning  following  the  night  when  the  burglary  was 


rww^ 


132 


AMERICAN  CRIMINAL  REPORTS. 


alleged  to  have  been  committed,  and  endeavored  to  sell  artic'es  similar  to 
thost'  claimed  to  liavebeen  stolen,  and  that  while  defendant  was  so  endeav- 
oring to  sell  such  articles  the  witness  looked  out  and  saw  the  co-defendant 
standing  outside,  is  not  in  itself  suflicient  to  establish  a  conspiiaty  between 
such  defendants,  nor  is  it  proper  testimony  to  go  to  the  jury  as  tending  to 
establish  such  fact ;  nor  is  furtlier  evidence  of  the  fact  that,  many  days  after 
the  alleged  burglary,  the  defenilants  were  seen  conversing  togclher,  evi- 
dence of  such  conspiracy.    Peojjle  v.  Stecens,  68  Cal.,  113. 


State  v.  Frahm. 
(73  la.,  355.) 
•   Burglary:  Degree  of  crime  —  Recent  posnession. 

1.  Burglary  — In  first  degree  —  Sufficiency  op  evidence.— The  evi- 
dence against  a  defendant,  indicted  for  burglary,  showed  that  the 
goods  stolen  were  of  a  bulky  clv.rr.ct^r,  wore  taken  from  a  house  in  a 
somewhat  isolated  locality,  and  were  foimd  soon  after  the  loss  in  de- 
fendant's possession.  Held,  that  the  dillieulty  of  removing  such  goods 
unobserved,  in  the  absence  of  other  testimony,  was  entirely  insuffi- 
cient to  sustain  a  conclusion  that  they  were  taken  in  the  night-time ; 
and  as  the  time  of  taking  is  the  chief  distinction,  under  code  of  Iowa, 
between  burglary  in  the  first  and  second  degrees,  a  verdict  of  guilty 
in  the  first  degree  should  be  set  aside. 

3.  P0SSE.SS10N  OF  property  stolen  by  burglar.— Wiiere  it  is  shown 
that  a  larceny  and  burglary  were  connnitted  by  the  same  person  at 
the  same  time,  and  the  goods  taken  at  tiie  time  of  the  burglary  are 
found  in  the  possession  of  a  person  soon  after  the  occurrence,  this  is 
prima  facie  evidence  that  he  is  guilty  of  both  offenses.' 

Appeal  from  District  Court,  Jasper  County. 
Defendant  John  Frahm  was  convicted  upon  an  indictment 
for  burglary  in  the  night-time,     lie  now  appeals  to  this  court. 

Alanson  Clark  and  7i'.  J.  Salmon^  for  appellant. 
A.  J.  Baher,  attorne} -general,  for  the  state. 

Beck,  J.  1.  Under  the  statute  of  this  state,  burglary  of  a 
dwelling-house  is  of  two  degrees, —  the  lirst,  breaking  and  en- 
tering in  the  night-time,  with  the  intent  to  commit  a  felony; 
the  second,  the  breaking  and  entering  in  the  day-time.  Tho 
punishment  for  the  first  degree  is  imprisonment  in  the  peni- 


'  See  note. 


STATE  V.  FRAHM. 


133 


tentiary  not  to  exceed  twenty  years,  in  the  absence  of  aggra- 
vation.by  reason  of  the  offender  being  armed,  or  committing 
an  assault  upon  any  person  in  the  dwelling,  or  being  aided  by 
confederates  present  at  the  commission  of  the  crime;  and  for 
the  second  is  imprisonment  in  the  penitentiary  for  not  more 
than  ten  years,  or  fine  of  not  to  exceed  $100,  and  imprison- 
ment in  the  county  jail  for  not  more  than  one  year.  It  will 
be  observed  that,  in  the  estimation  of  these  statutes,  there  is  a 
wide  difference  in  the  hoinousness  of  the  degrees  of  this  offense. 

2.  We  are  of  the  opinion  that  the  evidence  utterly  fails  to 
show  that  the  offense  was  committed  in  the  niglit-time.  The 
only  evidence  to  establish  defendant's  guilt  was  testimony 
tending  to  show  that  tlie  dwelling-house  was  broken  o[)en,and 
tliat  certain  goods  left  therein  wore  found  in  defendant's  posses- 
sion. It  cannot  bo  denied  that  the  evidence  which  is  claimed 
to  identify  tlie  goods  found  as  tliose  left  in  the  house  is,  to  say 
tiie  least  of  it,  extremely  unsalisfactor}'.  It  can  hardly  be  said 
tliat  it  utterly  fails  on  this  point;  but  it  does  wholly  fail  to 
show  that  the  crime  was  committed  in  the  night-time.  It  is 
said  that,  on  account  of  the  bulky  character  of  the  goods  stolen, 
the  probability  ai'ises  that  they  were  taken  in  the  night-time. 
In  view  of  the  facts  that  the  house  was  somewhat  secluded  and 
was  unoccupied  by  any  person  for  several  daj's,  it  is  quite  as 
probable  that  the  goods  were  taken  in  the  day-time  as  at  night. 

3.  The  district  court  gave  the  following  instruction,  which 
is  complained  of  by  defendant's  counsel;  "  If  3'ou  find  from 
the  evidence,  beyond  a  reasonable  doubt,  that  some  person 
stole  from  the  saiil  dwelling-house  the  beds  or  bedding,  or  some 
poi'tion  thereof,  introduced  in  evidence  in  this  case,  by  break- 
ing and  entering  the  said  dwelling-house  in  the  night-time, 
with  intent  to  steal  the  same,  and  you  further  so  find  that  re- 
cently thereafter  such  property  thus  stolen,  if  any,  was  found 
in  the  possession  of  the  defendant.,  then  and  in  such  case  you 
would  be  warranted  in  concluding  that  the  defendant  stole  the 
property,  if  any,  thus  found  in  his  possession,  b}'  breaking  and 
entering  said  dwelling-house  in  the  nigl't-time,  with  intent  to 
steal  such  pro})erty,  unless  the  facts  and  circumstances  shown 
by  the  evidence  raise  in  your  mind  a  reasonable  doubt  as  to 
whether  he  did  not  come  honestly  into  such  possession.  Hut 
if  such  facts  and  circumstances  do  raise  such  reasonable  doubt, 


lU 


AMERICAN  CRIMINAL  REPORTS. 


then  you  would  not  be  warranted  in  drawing  such  conchision 
from  such  recent  possession,  if  established."  This  instruction 
is  in  accord  with  our  ruling  in  Slate  v.  Hi  vers,  OS  la.,  Gil, 
wherein  we  hold  that,  where  it  is  shown  that  the  larceny  and 
the  burglary  were  committed  by  the  same  person  at  the  same 
time,  recent  possession  of  the  goods  stolen  is  prima  facie  evi- 
dence tiiat  the  possessor  is  guilty  of  both  offenses. 

4.  We  think  the  district  court  should  have  sustained  the  mo- 
tion for  a  new  trial  on  the  ground  that  the  evidence  AvhoUy 
failed  to  show  that  the  offense  was  committed  in  the  night- 
time. The  prejudice  resulting  to  defendant  from  the  convic- 
tion, in  the  absence  of  evidence  showing  sucii  fact,  isapjjarent. 

For  the  error  in  overrulmg  the  motion  for  a  new  trial  the 
judgment  of  the  district  court  is  reversed. 


Note.—  Burglary  —  Possession  of  stolen  projwrty—  Presumption.—  Pos- 
session of  proijcity,  taken  at  the  time  of  tlie  com  mission  of  a  burglary, 
without  other  facts  indicative  of  guilt,  is  not  ssuflic'ient  to  support  a  convic- 
tion of  burglary.  Utiiurt  v.  People,  43  Mich.,  2")5;  iitote  v.  Tillon,  03  la., 
117.  Though  the  unexphiined  posses^sion  of  property  recently  stolen  is 
prima  faeie  evidence  that  the  one  in  jiossession  is  guilty  of  larceny,  it  is  not 
alone  sufficient  to  sustain  a  conviction  of  burglary.  Slate  c.  Shaffer,  4  Am. 
C.  R.,  8-i,  and  note.  Otherwise  where  it  is  shown  that  the  larceny  and  the 
burglary  were  committed  at  the  same  time  (•'^'""'/'  »'.  People,  ll.j  111.,  17) 
and  by  the  same  jierson.  State  v.  Pivers,  08  la..  Oil.  See  State  i\  Kirh- 
j)atrick,  72  la.,  500,  as  to  the  pre6unii)tion  of  guilt  arising  from  the  pos- 
session of  stolen  propertj'. 

Prior  kiioirledf/e  by  otrncr. —  Where  the  jirojirietor  of  a  building  hears  of 
an  intended  burglary  to  be  conunitted  by  breaking  into  sui'h  building,  and 
does  not  jirevont  it,  but  jiuts  a  force  in  the  building  to  ca])lure  the  burglar, 
and  docs  not  effect  his  capture,  this  does  not  affect  the  guilt  of  the  burglar. 
State  V.  Sneff,  22  Neb.,  481. 

DeelaratioiiH  of  defendant. —  A  person  to  wliom  one,  intending  to  commit 
burglary,  eontides  such  intention,  and  procures  such  person  to  promise  to 
act  as  aceomj)lice,  is  a  competent  witness  to  prove  the  declarations  and  acts 
of  the  jarty  committing  the  offense;  the  credibility  of  such  witness  being  a 
(juestion  for  the  ,iury.     Ibid. 

Indietment  —  Breakimj  and  entering  with  intent  to  rape. —  An  indict- 
ment for  burglary  charged  defendant  with  forcibly  breaking  and  entering 
in  the  night-time,  with  intent  to  commit  rape,  a  dwelling-house,  there  being 
at  that  time  lawfully  therein  a  female,  ujion  whom  he  committed  an  as- 
sault. The  jury  convicted  defendant  of  an  assault  with  intent  to  rape. 
Held,  that  the  latter  crime  not  being  one  of  the  degrees  of  burglary,  the 
conviction  could  not  he  sustained.     Slate  v.  Ryan,  1.")  Ore.,  .^72. 

Assault  with  intent  to  rape  —  Indietment. —  An  indictment  charging  that 
defendant  broke  and  entered  a  dwelling-house  with  the  intent  to  commit 


CHASTANG  v.  STATE. 


135 


rape  tlicrpin,  and.  Imvinj;  so  entered  said  dwelling-liouse  with  such  int<;nt. 
did  tlien  and  there  commit  an  assault  upon  a  female  lawfully  therein,  is 
insullicieut  to  charge  the  crime  of  an  assault  with  intent  to  rape.  15  Ore., 
072. 


CiiASTAxo  V.  State. 

(83  Ala.,  29.) 

Carryinq  concealed  weapons:  Evidence. 

Carryino  weapons  —  Search  of  person  —  Admissibility  op  evi- 
dence.—  Dfl'i'iidant,  lieinj;'  arrested  on  a  warrant,  was  found  to  have 
a  pistol  concealed  in  his  hip-pockft.  Ou  the  trial  of  an  indictment  for 
carryint;-  cuncealod  weapons,  defendant  objected  that  the  search  of  his 
l)erson  was  a  trespass,  and  the  tc--iimony  thus  obtained  was  improper. 
Held,  that  the  olijection  was  properly  overruled. 

Appeal  from  City  Court  of  ]\[obilG;  Hon.  O.  T.  Sims,  Jmlge. 
Cluirles  Cluistiing.  (k't'etuUint,  was  indicted  for  cai'rying  con- 
cealed weapons.     He  was  convicted,  and  brings  this  appeal. 

G.  L.  tt  //.  T.  Sia)il),iov  appellant. 

2\  N.  2[cC!ellaH,  attorney -general,  for  the  state. 

Stonk,  C.  J.  An  olHcer,  having  a  warrant  for  the  arrest  of 
defendant,  attemplod  to  execute  it,  when  the  latter  made 
demonstrations  of  resistance  by  moving  his  iiand  in  the  direc- 
tion of  the  pocket  or  place  on  his  person  where  pistols  are  fre- 
quently carried.  Thereupon  another  oHicei',  aiding  the  first, 
])ointed  a  pistol  at  defendant  and  commanded  him  to  hold  up 
his  hiinds,  which  he  did.  The  defendant  was  then  arrested,  and, 
proceeding  to  disarm  him,  a  pistol  was  found  concealed  in  his 
hip-pocket.  This  is  tho  substance  of  all  the  criminating  evi- 
dence. 

It  was  objected  in  the  court  below,  and  the  objection  is  re- 
newed here,  that  the  search  of  the  defendant's  person  was  a 
trespass  unauthorized  by  law,  and  that  the  testimony  thus  ob- 
tained was  illegally  admitted  against  the  objection  of  the 
defendant.  If  it  were  necessary,  it  might  ])resent  a  grave 
question  if  an  olllcer  authorized  to  arrest  for  a  criminal  or  a 
supposed  criminal  olfense  may  not  and  should  not  disarm  the 


136 


AMERICAN  CRIMINAL  REPORTS. 


accused  of  all  weapons  or  other  instruments  which  could  be 
made  useful  in  effecting  an  escape.  But  we  will  place  the 
decision  of  this  case  on  broader  grounds.  "We  have  read  the 
able  opinion  of  Justice  Bradley  in  the  case  of  Boyd  v.  United 
States,  110  U.  S.,  GIO;  C  Sup.  Ct.  Ecp.,  524,  and  confess  ourselves 
interested  and  instructed  thereby.  We  indorse  and  approve 
everything  said  therein.  The  proceeding  in  that  case  was 
under  a  statute  highly  penal,  the  violation  of  which  exposed 
the  oifender  to  a  heavy  forfeiture.  The  order  of  the  court 
required  the  defendant  to  produce  in  evitlence  against  himself 
a  strictly  private  paper  or  document,  under  the  penalty,  if  he 
disobeyed  tjje  order,  of  having  the  imputed  contents  of  the 
alleged  document  treated  as  confessed  by  him.  Tliis,  it  was  held, 
was  comi)clling  the  accused  to  furnish  evidence  against  himself. 
In  the  })resentcase  the  defendant  was  rerjuired  to  produce  noth- 
ing, to  testify  to  nothing,  and  no  presumption  was  indulged 
against  him  as  a  penalty  for  his  failure  to  comply  with  any  order 
of  court.  If  our  statute  had  provided  that,  under  an  indictment 
for  carrying  a  weapon  concealed  about  the  person,  the  defend- 
ant might, under  the  order  of  the  court,  be  i'e(|uiied  to  produce 
the  alleged  weai)on,  and,  on  failure  to  comply,  the  presump- 
tion would  be  inilulged  that  he  had  such  weajion  concealed 
about  his  person,  then  the  defendant  would  be  required  to  fur- 
nish evidence  against  himself.  Then  we  would  h.fve  a  ques- 
tion in  all  respects  like  the  one  considered  in  Buijd  v.  United 
States,  supra. 

The  circuit  court  did  not  err  in  admitting  the  evidence,  nor 
in  the  charge  to  the  jury.  Splcei'  v.  State,  01)  Ala.,  159;  Samp- 
son V.  State,  54  Ala.,  241;  State  v.  Flijun,  oG  N.  II.,  04;  1 
Greenl.  Ev.,  §  231;  Whart.  Crim.  Ev.,  §  078. 

Affirmed. 


Note.—  Defendant  was  on  trial  upon  an  indictment  under  the  Code  of  Ala- 
bama of  ISTC,  section  4109,  for  carrying  a  pistol  concealed  about  liis  person. 
The  evidence  showed  the  weapon  to  have  been  defective,  but  that  it  could 
be  fired  by  striking  the  hammer  with  a  knife  or  otiier  iuHtrunient.  Held, 
that  a  charge  by  the  court  in  substance  that  if  the  jury  believe  from  the  evi- 
dence that  the  iiistol  could  be  fired  by  being  held  in  one  hiuid,  and  having 
the  hammer  struck  with  a  knife  or  other  instrument  held  in  the  other  hand, 
it  was  a  weapon  or  fire-arm,  the  concealed  carrying  of  which  about  the 
person  would  be  contrary  to  law,  was  proper.  That  it  was  proper  to  refuse 
defendant's  request  to  the  effect  that,  if  the  pistol  had  no  mainspring,  fire- 


mmm^mi 


Mcdonald  v.  people. 


137 


pan,  or  other  contrivance  essential  to  the  firing,  it  was  in  law  incapable  of 
being  used  as  a  pistol  or  fire-arm,  and  the  concealed  carrying  thereof  was 
not  a  criminal  offeuse.    liedus  v.  State,  83  Ala.,  53. 


McDoxALD  V.  People. 

(120  111.,  151) 

Conspiracy  to  defraud  a  county  by  collection  of  fraudulent  bills: 
,  Bill  of  particulars. 

1.  Bill  of  pakticulars  —  Eviden'ce. —  Where,  upon  motion  of  a  defend- 

ant indicted  for  a  consi)iracy  to  defraud  a  county  by  the  presentation 
and  collection  of  l)ills  alleged  to  be  fraudulent,  the  charges  being  in- 
definite and  general  in  the  indictment,  bills  of  particulars  are  ordered 
and  funiished,  sliowing  the  dates  and  numbers  of  bills  for  epairs  on 
a  county  building,  evidence  of  similar  bills  for  services  and  materials 
for  other  buildings  neither  mentioned  in  the  particulars  nor  connected 
with  the  bills  or  th(!  buiMiiig  therein  referred  to  is  inadmissible,  as 
the  elTeet  of  the  ]iarticiilars  is  to  narrow  the  range  of  inquiry  to  the 
transaction  therein  mentioned. 

2.  Instructions. —  Error  in  refusing  evidence  of  other  fraudulent  bills  hav- 

ing been  ailmitted,  it  is  error  to  refuse  to  instruct  that  the  defendant 
is  on  trial  only  lor  the  transaction  referred  to  in  the  bill  of  particulars. 

3.  Conduct  of  thial— Augiment  of  counsel. —  A  conviction  will  be 

reversed  when  counsel  lor  the  peojjle  refer  to  similar  prosecutions  in 
another  city,  and  allude  to  exceptions  taken  by  defendant,  saying  that 
the  purpose  was  to  take  down  everything  said  during  the  trial  to  get 
error  into  the  record,  hoiiing  to  reverse  the  case  if  a  conviction  should 
be  had,  and  rem.irk  that  the  law  allows  defendants  to  testily  for  them- 
selves, and  ridicule  legal  proceedings  in  criminal  cases,  and  tell  the 
jury  that  defendant  had  unsuccessfully  sought  a  change  of  venue, 
and  advert  to  the  alleged  imjiroper  influence  exerted  over  the  admin- 
istration of  justice  by  defendant's  brother.' 

Error  to  A])pollate  Court,  First  District. 

Edward  8.  jNIcDonald,  William  J.  McGarig-le,  J^icliolas 
Schneider  and  Frederick  Faber  were  jointly  indicted  in  the 
criminal  court  of  Cook  county  for  conspiracy  to  defraud  the 
county.  McDonald  and  McGarigle  were  tried  togetiier,  con- 
victed, and  sentenced  to  three  years'  imprisonment.  The  M.  C. 
McDonald  referred  to  in  the  oi)inion  of  the  court  as  having 
been  alluded  to  by  Mr.  Grinnell,  the  prosecuting  attorney,  is 
a  brother  of  defendant  Edward  S.  A[cDonald.     McDonald  took 

•  See  note. 


138 


AMERICAN  CRIMINAL  REPORTS. 


,v';| 


a  writ  of  error  to  the  appellate  court,  where  the  jnclgment  was 
affirmed.     25  Brachv.,  350.    He  again  brings  error. 

W.  S.  Forrest  and  C.  Beckwith,  for  plaintiff  in  error. . 

Geonje  llunt^  attorney -general,  Jod  2[.  Loiujcnecl'er,  state's 
attorney,  lu'anch  W.  Waller  and  Ednnnul  Furtltman,  as- 
sistant state's  attorneys,  /.  N.  StUas  and  John  Leans,  for  the 
people. 

Ckaig,  C.  J.  This  was  an  indictment  in  the  criminal  court 
of  Cook  county  against  Nicholas  Schneider,  William  J. 
McCxarigle,  Ficderick  Faber  and  Edward  S.  McDonald,  in 
which  the  defendants  were  charged  with  a  conspiracy  to 
obtain  money  from  Cook  county  by  false  pretenses.  The  in- 
dictment contained  several  counts,  some  of  which  charge  a 
conspiracy  to  defraud  the  county  by  means  of  false  pretenses 
generall}^  while  other  charge  a  conspiracy  to  defraud  the 
county  with  respect  to  repairs  at  the  normal  school.  At  the 
June  term,  1S8T,  of  llie  criminal  coui-t,  ]\lc(jarigle  and  McDon- 
ald were  tried  jointly  before  a  jury.  The  two  other  defend- 
ants, Schneider  and  Faber,  were  not  jiut  upon  trial,  but  were 
used  as  witnesses  by  the  jieople  against  Mc(iarigle  and  McDon- 
ald. The  jury  found  the  two  defendants  guilty,  and  fixed 
their  term  of  imprisonment  at  three  years  in  the  penitentiary. 
Edward  S.  ]\IcDonald  alone  sued  out  this  writ  of  eiTor. 

Various  errors  have  been  assigned,  and  elaborate  arguments 
have  been  filed  on  behalf  both  of  the  defenilant  and  the  peo- 
ple. We  shall  not,  however,  undertake  to  follow  counsel,  and 
consider  all  tlie  questions  raised,  but  we  will  content  ourselves 
•with  the  consideration  of  a  few  questions  wliicii  are  decisive 
of  the  judgment  rendered  both  in  the  criminal  and  appellate 
courts. 

Every  person  charged  with  a  crime  is  entitled  to  a  fair  and 
impartial  trial  —  a  trial  in  conformity  to  the  laws  of  the  state  — 
and  it  is  a  duty  resting  upon  the  couHs  to  see  that  this  guar- 
anty conferred  by  the  laws  upon  every  citizen  is  upheld  and 
sustained.  A  fair  and  impartial  administration  of  the  laws  is 
one  of  the  most  sacred  riglits  of  the  citizen  —one  that  cannot 
be  abridged  or  frittered  away.  In  looking  over  the  record  be- 
fore us,  we  are  not  satisfied  that  the  defendant  McDonald  had 


Mcdonald  «.  peoplr 


139 


a  fair  and  impartial  trial  in  the  criminal  court.  Improper  evi- 
dence was  admitted;  the  instructions  to  the  jury  tlid  not  lay 
down  the  law  correctly;  and  other  irregularitios  occurred  dur- 
ing the  trial  which  doubtless  led  to  the  verdict  returned  by 
the  jury.  Under  the  last  head  may  be  mentioned  the  opening 
statement  of  the  case  to  the  jury  made  by  the  counsel  for  the 
people.  Much  latitude  is  always  allowed  counsel  in  the  state- 
ment or  argument  of  a  case  to  a  jury,  but  tliere  are  bounds 
wliich  ought  not  to  be  transcended.  As  a  general  rule,  a  full 
statement  of  the  facts  expected  to  bo  proven  on  the  ti'ial,  with 
a  statement  of  the  law  relied  upon,  would  seem  to  be  sulK- 
cient;  but  here  the  court  ruled  that  counsel  for  the  people 
might  elect  the  manner  in  which  to  make  tlnir  ojiening.  He 
was  allowed  to  talk  about  the  "boodle  pros(>cutions  in  New 
York  city;"  to  discuss  and  explain  tjo  the  jury  the  meaning 
and  ollice  of  an  "excejjtion"  entered  by  counsel  for  defend- 
ant. Among  other  things,  it  was  said  that  the  object  of  tak- 
ing exceptions  was  to  get  error  in  the  record  ;  tiuit  everything 
said  is  taken  down  by  the  stenographers;  that  in  case  the  de- 
fendants are  found  guilty,  they  have  a  right  to  take  an  appeal 
to  the  supreme  court;  that  the  whole  recoi-d  goes  up  to  the 
supreme  court;  that  if  the  judge  has  made  a  remark  which  he 
ought  not  to  have  made,  and  which  very  likely  he  has,  those 
seven  wise  men  down  at  Ottawa,  if  it  shall  appear  to  them 
that  any  remark  was  made  which  might  have  prejudiced  the 
cause  of  these  gentlemen  who  have  been  fountl  guilty,  they 
will  consider  whether  or  not  they  will  grant  them  a  new  trial; 
that  errors  may  be  run  all  through  tlie  case.  The  counsel  for 
the  people  also  informed  the  jury  that  the  law  had  been  so 
changed  that  any  defendant  might  testifv  in  his  own  belialf. 
Objection  being  made  to  this  statement  and  overruled,  counsel 
then  said:  "  There  is  another  exception.  The  court  thinks  I 
am  right  or  he  would  tell  me  to  varv  mv  line  of  argument." 
The  jury  were  also  told  that  the  defendants  had  applied  for  a 
change  of  venue  to  another  county,  and  the  application  for  a 
change  was  commented  upon  at  length.  Other  matters  wholly 
foreign  were  stated  and  argued  to  the  jury.  Indeed,  full  lib- 
erty was  given  counsel  for  the  peo|)le  by  the  court  to  make 
any  statement  he  saw  proper  to  make,  whether  it  had  any 
legitimate  bearing  on  the  case  or  not.     The  manner  in  which 


140 


AMERICAN  CRIMINAL  REPORTS. 


.£J 


1 


legal  proceedings  are  required  to  be  conducted  under  the  laws 
was  ridiculed  at  great  length  by  counsel  lor  the  people  with 
the  sanction  and  approval  of  the  court. 

It  is  a  proposition  too  plain  to  admit  of  argument  that  the 
jury  had  nothing  to  do  with  the  force  or  elFect  or  the  oliico  of 
an  excci)tion  that  might  be  taken  by  coun.ii>l  during  the  trial; 
nor  could  thoy  take  into  consideration  the  fact  (if  it  was  a  fact) 
that  the  dd'ondants  had  applied  for  a  change  of  venue;  nor 
Avas  it  material  for  them  to  know  that  the  law  had  been  so 
changed  that  a  defendant  might  testify  in  his  own  behalf. 
And  it  is  plain  that  the  court  ought  not  to  have  jHirmitted  the 
attorney  of  the  peo[)le  to  bring  these  matters  boforo  the  jury 
in  the  opening  stateuKMit.  In  Slafe  v.  Krinr/,  Ci  Mo.,  5!)5, 
where  the  jury  was  told  in  the  argument  that  if  they  wronged 
the  defendant  by  linding  him  guilty  that  wrong  can  be  righted 
by  an  appeal  by  the  del'endant  to  the  supreme  court,  the  re- 
mark was  held  to  be  error.  It  is  there  said:  "  Tiie  statements 
that  the  higher  courts  rel'errcd  to  had  the  power  to  review  the 
finding  of  the  jury  on  the  weight  of  evidence  was  calculated 
to  induce  the  jury  to  disregard  their  responsibility."  Our 
statute,  which  allows  a  defendant  in  a  criminal  casj  to  testify, 
declares  that  "his  neglect  to  testify  shall  not  create  any  pre- 
sumption against  him,  nor  shall  the  court  permit  any  reference 
or  comment  to  be  made  to  or  upon  such  neglect."  Under  this 
statute,  why  was  the  attorney  of  the  people  allowed  to  com- 
ment before  the  jury  of  the  right  of  the  defendants  to  testify 
in  the  case?  In  S/aie  v.  Smith,  75  N.  C,  oU7,  a  judgment 
wherein  a  defendant  was  convicted  was  reversed,  upon  the 
ground  alone  that  the  attorney  for  the  people  was  allowed,  in 
addressing  the  jury,  to  state  that  "  the  defendant  was  such  a 
scoundrel  he  was  comi)elled  to  remove  liis  trial  from  Jones 
county  to  a  countv  where  he  was  not  known:"  and  vet,  in  this 
case,  counsel  for  the  peo])le  was  permitted  to  aigue  at  great 
length  upon  the  fact  that  defendants  had  applied  for  a  change 
of  venue,  and  the  application  had  been  denied.  The  defend- 
ants were  charged  with  a  crime  which  was  a  violation  of  the 
laws  of  the  state.  They  were  on  trial  under  the  laws  of  the 
state.  The  inquiry  is  a  pertinent  one,  why  the  laws  of  the  state 
under  which  criminals  on  trial  were  i)ermitted  to  be  ridiculed 
in  the  opening  argument  to  the  jury.   What  the  object  of  coun- 


Mcdonald  v.  people. 


141 


sol  was  in  pursuing  tlio  course  that  was  pursued  may  be  diffi- 
cult to  understand;  but  whatever  may  liave  been  the  object, 
tiio  cflfcct  of  what  was  done,  without  doubt,  created  a  prejudice 
in  the  minds  of  the  jury,  and  may  have,  in  part,  at  least,  led 
to  the  verdict  which  was  rendered.  Aj^ain  in  the  closing  argu- 
ment to  the  jury  on  behalf  of  the  people,  counsel  were  allowed 
to  travel  outside  of  the  record  and  discuss  M.  C.  McDonald 
and  his  influence  in  tho  administration  of  justice  in  Chicago. 
Among  other  things  the  state's  attorney  said  :  "  They  sa}'  there 
is  a  fabled  tree  that  grows  in  some  torrid  clime;  that  tho  birds 
of  the  air  which  fly  near  its  branches,  influenced  by  the  aroma 
of  it,  fall  beneath  it  and  die.  That  is  tho  influence  of  M.  C. 
]\[cDonald  in  this  and  all  matters  connected  with  tho  adminis- 
tration of  justice."  Other  allusions  of  a  similar  character  wero 
made  in  the  argument  to  the  same  person.  He  was  in  no  man- 
ner connected  with  the  case,  and,  upon  objection  being  made, 
it  was  the  dutv  of  the  court  to  confine  the  ar<;iunont  to  a  con- 
sideration  of  such  matters  as  properly  pertained  to  tho  case 
under  tho  evitlence.  People  v.  Mitchell,  G2  Cal.,  411;  I/inur- 
fDice  Co.  V.  Ch('cva\  30  Ohio  St.,  201 ;  llolfe  v.  luhalntants  of 
linmford  CO  Ue.,  504. 

The  indictment  contained  six  counts,  but  the  state's  attorney 
dismissed  the  fifth  count  out  of  the  case.  Tho  first  four  counts 
charged  the  defendants,  in  general  terms,  with  a  conspiracy 
to  defraud  Cook  county  by  means  of  false  pretenses.  Tiie  last 
count  charged  a  conspiracy  to  defraud  Cook  county  by  means 
of  false  pretenses  as  to  work  done  and  materials  furnished  at 
tho  normal  school  in  1880.  Before  tho  cause  was  called  for 
trial  the  defendant  filed  a  motion  in  writing  requesting  the 
court  to  enter  an  order  requiring  the  state's  attorney  to  flle  a 
bill  of  particulars.  After  due  consideration  the  court  granted 
tlie  order,  and  in  response  thereto  tho  state's  attorney  filed 
Avhat  is  known  in  the  record  as  the  original  bill  of  particulars. 
The  bill  of  particulars  thus  filed  did  not,  however,  prove  to  be 
satisfactory  to  the  defendant.  It  was  but  little  more  definite 
or  specific  as  to  the  character  of  the  charge  than  the  indict- 
ment. The  defendant  then  filed  a  petition  for  a  fur; her  and 
better  bill  of  particulars,  which,  upon  due  consideration,  the 
court  granted,  and  entered  an  order  requiring  the  state's  attor- 
ney to  furnish  defendant  McDonald  a  further  and  better  bill 


it: 

r' 


142 


AMERICAN  CRIMINAL  REPORTS. 


of  particulars.  In  the  order  the  state's  attorney  was  required 
to  furnish  tlie  defon(hint  ^^fcDonald  the  date  an<l  number  of  all 
bills,  vouchers  or  wiii-riintswJiich  are  relied  upon  by  tlio  people, 
and  which  liavo  been  on  file  in  any  county  o<!lco.  .vnd  which 
have  been  in  the  possession  of  the  state's  attorney;  and  also 
that  the  said  people  ])erniit  the  inspection  of  the  said  bills, 
vouchers  and  warrants  by  the  attorneys  for  said  Edward  8. 
McDonald,  or  some  of  such  attorneys;  also,  that  said  people 
furnish  the  defcndiint  Edward  S.  McDonald  the  dates  between 
which  the  work  or  labor  done,  or  pretended  to  bo  done,  was 
done  or  pretended  to  bo  done;  also,  that  the  state's  attorney 
permit  the  defendant  McDonald  and  his  counsel  to  examine 
and  inspect  any  booUs  which  the  state's  attorney  claims  were 
kept  in  pursuance  of  the  conspiracy  char<,'cd  in  the  indictment. 
Amended  bill  of  jiarticulars  furnished  McDonald  is  as  follows: 
"(1)  The  dates  between  which  the  labor  was  done  or  pretended 
to  have  been  done,  and  the  material  furnished  or  pretended  to 
have  been  furnished,  by  said  Xicholas  Schneider,  as  set  forth 
in  the  bill  of  jiarticulars  heretofore  furnished  said  defendants 
McGarigle  and  Etiward  S.  McDonald,  are  January  1,  1886, 
until  January  1, 1887.  (2)  The  dates  and  numbers  of  bills  that 
are  relied  upon  are:  No.  7,  August  2,  18S(5.  ]SV  .  9,  August  9, 
1886.  No.  12,  August  10,  1880.  No.  115,  September  4,  1880. 
No.  15,  September  13,  1880.  No.  18,  September  20,  1880. 
No.  23,  October  2,  1886.  No.  20,  October  9,  1880.  No.  27, 
October  10,  1880.  No.  31,  November  1,  ISSO.  No.  30,  No- 
vember 8,  ISSO.  No.  40,  November  20,  18S0.  Julius  S.  Gijin-- 
NEf.L,  State's  Attorney." 

The  order  of  the  court  under  which  the  last  bill  of  particu- 
lars was  furnished  is  plain  and  cannot  be  misunderstood.  The 
date  and  number  of  all  fraudulent  bills,  vouchers  or  warrants 
relied  upon  by  the  people  to  secure  a  conviction  by  the  order 
are  to  be  furnished  by  the  state's  attorney  to  the  defendant. 
The  order  of  the  court  was  obeyed,  and  a  list  of  the  fraudu- 
lent bills  which  were  to  be  relied  upon  on  the  trial  to  secure  a 
conviction  was  submitted  to  the  defendant.  The  bills  relied 
upon  were  twelve  in  number,  the  first  bearing  date  August  2, 
1886,  and  the  last,  November  20  of  the  same  year.  They  all 
related  to  services  performed  and  materials  furnished  at  the 
normal  school.    Under  the  bill  of  particulars  which  had  been 


McDonald  v.  people. 


U3 


furnislicd,  it  was  contcnderl  on  the  trial  by  tlio  dofcndant  tliat 
the  evidence  sliould  bo  confined  to  the  normal  scliool  transac- 
tions; but  til  is  position  was  overruled  by  the  court,  and  tlio 
jieoplo  were  allowed  to  introduce  evidence  of  fraudulent  bills 
for  service  rendered  and  material  furnislicd  at  tlie  court-house, 
insane  asylum,  inlirmary  antl  the  hospitals.  Some  twenty-nine 
of  Schneider's  bills,  relating-  solely  to  those  places,  were  intro- 
duced in  evidence  to  establish  the  cluirf^e  of  conspiracy  to  de- 
fraud Cook  county  in  rendering  fraudui(MU  bills  for  services 
rendered  and  material  furnished  at  the  normal  school,  as  stated 
in  the  bill  of  particulars.  The  rulinfj^  of  the  court  on  the  ad- 
mission of  this  evidence  presents  a  question  of  importance,  and 
one,  too,  not  entirelv  free  from  dilticultv. 

Y,'!  ore  the  charge  in  the  indictment  is  a  f^eneral  one,  as  is 
usually  tlio  case  in  an  indictment  of  this  character,  it  is  a  mat- 
ter of  great  importance  to  a  defendant  to  obtain  a  bill  of  par- 
ticulars, in  order  that  he  may  know  specilically  what  ho  may 
bo  recjuired  to  meet  on  the  trial.  If,  however,  after  a  bill  of 
particulars  has  been  furnished,  the  evidence  to  establish  a  con- 
viction is  not  conliiic<l  to  the  specilications  therein,  what  benelit 
is  to  be  derived  from  a  bill  of  particulars?  Where  is  tlie  neces- 
sity for  an  order  of  court  requiring  a  bill  of  particulars?  Com.  v. 
Snellwg,  15  Pick.,  320,  is  an  interesting  case  on  the  subject.  Tho 
ittft'ndant  was  indicted  for  a  libel  on  the  character  of  one  Ben- 
jamin Whitman,  a  justice  of  the  police  court,  charging  him,  in 
vii  ous  forms,  but  in  general  terms,  with  miscontluct  and  mal- 
pnictice  in  the  discharge  of  the  duties  of  his  olHce.  Prior  to 
the  coming  on  of  tho  trial  the  defendant  was  required  by  the 
court  t«)  state  whether  ho  intended  to  offer  proof  of  the  truths 
of  the  misco-  duct  charged  in  the  publications  alleged  to  bo 
libelous,  and,  if  so,  to  file  specifications  of  the  cases  and  instances 
of  misconduct  intended  to  be  given  in  evidence;  and  on  the 
trial  the  defendant  was  prohibited  from  giving  evidence  of  the 
truth  of  th  supposed  libel,  except  according  to  the  specifica- 
tions so  filed.  The  order  of  the  trial  court  was  fully  sustained, 
and  upon  one  branch  of  the  question  the  court  said:  "And  in 
regard  to  another  exception,  namely,  that  the  defendant,  hav- 
ing in  his  bill  of  particulars  specified  certain  cases  and  added 
tho  words  'and  others,'  was  prohibited  from  going  into  evi- 
dence of  cases  not  otherwise  specified.    All  the  reasons  which 


I^li:. 


144 


AMERICAN  CRIMINAL  REPORTS, 


require  a  specification  require  that  the  defendant  should  be 
confined  to  the  cases  specified;  otherwise,  the  purpose  of  tlio 
ortler  would  be  wholly  defeated."     In  People  v.  Me  Kinney,  10 
Mich.,   Si,   which  was   an  indictment  for  embe///.leniont,   in 
speaking  of  the  ollice  of  a  bill  of  particulars  the  court  said: 
"The  particulars  called  for,  if  furnished,  would  not  have  con- 
stituted strictly  a  part  of  the  informaiion,  nor  any  ])art  of  the 
record  pro])er.     It  would  not   have  constituted  the  charges 
upon  which  the  defendant  was  to  he  tried,  as  the  defendants 
seem  to  suppose.     Its  only  purpose  and  eifect  are  to  inform 
the  defendant  of  the  nature  of  the  evidence  and  the  particular 
transactions  to  be  proved  under  the  information,  and  to  limit 
the  evidence  to  the  items  and  transactions  stated  in  the  par- 
ticulars."    In  Eeg.  v.  7i«fia/le.,  1  Fost.  &  F.,  213,  which  was  an 
information  for  conspiracy,  prior  to  the  trial,  bills  of  partic- 
ulars having  been  delivered  under  an  order  of  court  and  evi- 
dence of  transactions  not  named  therein  having  been  olTered 
and  rejected,  the  court  held  that  particulars  having  been  or- 
dered of  overt  acts  the  counsel  for  the  crown  were  confined 
within  them.     See,  also.  Com.  v.  Davis',  11  J^ick.,  4;>4-.     A  lead- 
ing case  on  the  question  is  Cdui.  v.  O'iles,  1  Gray,  4(')S.     The 
defendant  was  indicted  as  a  common  seller  of  spirituous  and 
intoxicating  liquors.     Before  the  trial  defendant,  upon  his  mo- 
tion, had  been   furnished  b\   order  of  the  court  with  a  list 
specifying  the  names  of  the  persons  to  whom  sales  would  bo 
proved.     At  the  trial  the  district  attorney  olfercd  evidence  of 
other  sales  to  persons  not  named  in  the  specification.     The 
evidence  was  admitted  against  the  objection  of  the  defendant. 
The  supreme  court  in  passing  upon  this  question  said:  "  It  is 
now  a  general  rule,  perfectly  well  established,  that  in  all  legal 
proceedings,  civil  and  criminal,  bills  of  particulars  or  specifica- 
tions of  facts  may  and  will  be  ordered  by  the  court  whenever 
it  is  satisfied  that  there  is  danger  that  otherwise  a  party  may 
be  deprived  of  his  rights  or  that  justice  cannot  be  done.     The 
court  then  disrv, :  os  the  question  whether  the  order  of  court 
granting  a  bill  of  particulars  is  final,  inclining  to  the  view  that 
it  is.     The  court  then  said:  "Ijut  whether  this  be  so  or  not, 
when  it  is  once  made  it  concludes  the  rights  of  all  parties  who 
are  to  be  alfected  by  it,  and  ho  who  has  furnished  a  bill  of 
particulars  under  it  must  be  confined  to  the  particulars  he  has 


McDonald  v.  people. 


145 


specified  as  closely  and  eflfectually  as  if  they  constituted  essen- 
tial allegations  in  a  special  declaration.  The  evidence,  there- 
fore, of  sales  not  mentioned  in  the  list,  which  was  furnished  to 
the  defendant  in  the  present  case,  was  inadmissible  and  should 
have  been  rejected.  The  particular  purpose  for  which  it  was 
allowed  to  be  adduced,  scarcely  if  at  all  limiting  or  diminishing 
its  general  force  and  effect,  constituted  no  exception  to  the 
general  rule,  and  afforded  no  suflicient  or  legal  reason  for  dis- 
regarding it." 

The  court  of  last  resort  in  Xew  York,  in  Star /c weather  v. 
Kittle,  17  Wend.,  21,  in  speaking  of  a  bill  of  particulars  said: 
"  The  declaration,  plea  or  notice  of  set-off  may  be  so  general 
in  its  terms  that  the  opposite  party  will  not  be  fully  apprised 
of  the  demand  which  v.'ill  be  set  up  on  the  trial,  and  he  is 
therefore  permitted  to  call  on  his  adversary  to  give  a  more 
detailed  and  particular  statement  of  the  claims  on  which  he 
intends  to  rely.  When  the  bill  isfurnislied  it  is  deemed  a  part 
of  the  declaration,  plea  or  notice  to  which  it  relates,  and  is 
construed  in  the  same  way  as  though  it  had  originally  been 
incorporated  in  it."  It  will  be  observed  that  in  the  last  case 
cited  the  court  treats  a  bill  of  ])articulars,  when  furnished,  as 
a  part  of  the  declaration,  plea  or  notice  to  which  it  relates, 
while  in  the  (rlfcs  Caw  it  is  said,  "he  who  furnishes  a  bill  of 
particuhirs  must  bo  confined  to  the  particulars  as  closely  as  if 
they  constituted  essential  allegations  in  a  special  declaration," 
and  the  evid(Mic(?  was  confined  strictly  to  the  bill  of  particulars. 
It  will  also  be  observed  that  in  the  case  of  People  v.  J/cA'in- 
neij,  supra,  the  court  scorns  to  take  a  slightly  different  view  of 
the  office  of  a  bill  of  ])articidars,  and  says  it  does  not  constitute 
a  pai't  of  the  record,  but  its  olHce  is  to  inform  the  <leFendant 
of  the  niitiiro  of  the  evidence  and  the  particular  transactions 
to  be  proved.  These  different  expressions  in  the  authorities 
are  moi'c  formal  than  otherwise.  The  object  of  a  bill  of  par- 
ticulars is  to  give  the  accusod  notice  of  the  specific  charge  he 
is  required  to  meet  on  the  trial,  so  tha'.  he  may  be  pro))ared  to 
defend,  lloi'o  the  state's  attorney,  had  he  seen  proper,  might 
have  given  notice  in  the  bill  of  ]){ii'ticulars  that  fraudulent 
bills  for  labor  and  material  had  been  presented  by  Schneider, 
relating  to  the  court-house,  insane  asylum,  infirmary  and  the 
hospital,  specifying  the  date  and  amount  in  each  case.  Then 
Vol.  VII  — 10 


'::/ 1. 


146 


AMERICAN  CRIMINAL  REPORTS. 


the  evidence  relating  to  the  bills  at  these  various  institutions 
might  have  been  properly  admitted.  But  he  saw  proper  to 
limit  the  charge  to  twelve  specific  bills  for  labor  and  materials 
on  the  normal  school.  Having  done  this,  under  the  plainest 
principles  of  law  relating  to  the  admission  of  evidence  under 
an  averment  in  a  pleading  (treating  the  bill  of  particulars  as  a 
pleading),  the  evidence  ought  to  have  been  confined  to  the 
twelve  bills  specified  in  the  bill  of  particuhars.  Otherwise  the 
bill  of  particulars  was  a  delusion,  a  legal  snare,  furnished  for 
the  purpose  of  deceiving  the  defendants.  It  is  not  claimed 
that  the  act  of  presenting  normal  school  bills  was  connected 
with  the  presentation  of  the  other  bills  in  such  a  manner  that 
they  were  on  that  account  inseparable;  nor  was  such  the  case. 
The  bills  of  the  different  county  institutions,  and  fraudulent 
pretenses  relating  thereto,  had  no  immediate  or  direct  connec- 
tion with  each  other.  In  order  to  establish  a  conspiracy  on 
the  part  of  the  defendants,  in  regard  to  the  work  and  mate- 
rials on  the  normal  school,  it  was  not  necessary  to  prove  that 
Schneider  had  presented  fraudulent  bills  as  to  work  and  mate- 
rial furnished  at  the  court-house,  iiisaiu'  ;isylum,  infirmary  and 
hospital,  and  it  was  erroneous  to  allow  such  (nidence  to  go  to 
the  jury.  The  effect  of  the  bill  of  ])artieuliirs  liirnished  by  the 
state's  attorne}^  under  the  order  of  the  court,  was  to  narrow 
the  issue  to  the  fraudulent  bills  relating  to  the  normal  school, 
and,  as  a  necessary  consecjuoiice,  exclude  all  evidence  of  a  con- 
spiracy to  obtain  money  fi-om  Cook  county,  except  as  to  the 
bills  for  labor  and  material  furnished  on  the  normal  school. 
We  are  not  unmindful  that  it  is  competcmt.  when  the  issue  is 
whet'ier  a  party  is  guilty  of  a  general  conspiracy,  distinct, 
overt  acts  of  conspiracy  may  be  given  in  evidence! ;  and  that 
when  the  issue  is  whether  a  party  is  guilty  of  a  spcjcilic,  overt 
act  of  conspiracy,  it  is  competent  to  give  in  evidence  other 
overt  acts  of  conspiracy,  which  include,  or  are  dejiendent 
upon,  or  constitute  a  part  of,  the  res  (jesKn  of  that  act;  but  it 
has  never  been  held  admissible  to  give  in  evidence,  to  prove 
a  specified  overt  act,  wholly  disconnected  and  independent 
overt  acts,  having  no  other  relevancy  to  each  other  than  that 
they  are  overt  acts  of  the  same  parties.  What  was  said  in 
the  case  of  Ocha  v.  People,  124  III.,  390.  in  regard  to  the  admis- 
sion of  evidence,  has  no  appliciilion  to  the   facts  of  this  case. 


Mcdonald  v.  people. 


147 


There  the  defendants  were  charged  with  a  conspiracy  to  ob- 
tain money  from  Cook  county  by  means  of  false  pretenses. 
The  indictment  contained  five  counts;  but  the  state's  attorney 
elected  to  proceed  under  the  first  four  counts  of  the  indict- 
ment, which  were  in  substance  as  follows:  The  first  charges 
that  the  defendants  and  others,  on  November  1,  1885,  etc., 
feloniously  conspired  together  with  the  fraudulent  and  mali- 
cious intent  then  and  there  feloniously,  wrongfully  and  wick- 
edly, by  divers  false  pretenses  and  with  indirect  means,  to 
cheat  and  defraud  said  county  of  Cook  of  its  moneys,  etc. 
The  second  count  charges  a  conspiracy  to  obtain  the  moneys 
and  i)roperty  of  Cook  county  by  false  pretenses,  and  to  cheat 
and  defraud  the  county;  and  that  in  pursuance  of  the  con- 
spiracy they  did  obtain  large  amounts  of  goods,  moneys,  etc., 
of  the  value  of  §100,000,  of  the  county  by  false  pretenses. 
The  third  and  fourth  counis  charge  a  conspiracy  between  the 
parties  to  obtain  from  the  county  by  false  pretenses  divers 
large  sums  of  money,  of  the  value  of  $100,000.  It  will  be  ob- 
served that  the  charges  in  the  indictment  are  of  a  general 
character.  What  particular  pretenses  wore  resorted  to  is  not 
charged.  Under  such  charges  in  an  indictment  the  evidence, 
as  it  did  on  the  trial  of  the  cause,  might  take  a  wide  range; 
but  in  the  case  under  consideration,  the  Charge  as  heretofore 
shown  having  been  limited,  what  may  have  been  said  in  the 
(h7i.s  Case  in  reference  to  the  admission  of  evidence  can  have 
no  bearing  here. 

In  the  fifteenth  instruction  for  the  prosecution  the  jury 
were  told  "that  any  evidence  which  has  been  admitted  by  the 
court  in  the  presence  of  the  jury  is  for  the  consideration  of 
the  jury,  and  should  bo  considered  by  them  in  making  up  their 
ver-lict."  In  quite  a  number  of  the  instructions  given  at  the 
instance  of  the  people  the  jury  were  instructed  that  they 
should  find  the  defendants  guilty  if  they  believed  from  the 
evidence,  beyond  a  reasonable  doubt,  that  they  were  guilty 
"as  charged  in  the  indictment."  These  instructions  wholly 
ignored  any  restrictions  placed  upon  the  general  charge  con- 
tained in  the  indictment  by  the  bill  of  particulars  which  was 
furnished  the  defendants;  and  by  these  instructions,  thus 
wholly  un(puilified,  the  jury  was  left  at  perfect  liberty  to  find 
the  defendants  guilty  of  a  conspiracy  to  obtain  money  by  false 


148 


AMERICAN  CRIMINAL  REPORTS. 


pretenses,  by  means  of  either  false  and  fraudulent  court,-house 
bills,  hospital  bills,  asylum  bills,  infirmary  bills,  or  normal 
school  bills. 

Twenty  instructions  were  given  by  the  court  on  behalf  of 
the  people.  In  no  one  of  these  instructions  was  the  jury  di- 
rected to  acquit  the  defendants  unless  the}--  found  them  guilty 
of  the  normal  school  conspiracy, —  the  conspiracy  for  which 
they  were  placed  upon  trial.  In  order  to  meet  this  difllculty 
and  place  that  question  in  a  proper  light  before  the  jury,  the 
defendants'  counsel  prepared  instruction  number  2,  which, 
among  other  things,  contained  the  following:  "  The  defendants 
are  not  in  the  case  charged  with  conspiring  to  defraud  the 
county  by  bribing  county  commissioners  to  allow  exorbitant 
and  unjust  bills:  neither  are  they  upon  trial  for  conspiracy  to 
defraud  the  county  in  any  way  in  any  transactions  other  than 
those  relating  to  the  repairs  at  the  normal  school  undertaken 
by  Kicholas  Schneider."  This  part  of  the  instruction  was 
stricken  out  by  the  court,  and,  as  mod  Hied,  the  instruction  was 
then  given  to  tlie  jury.  As  that  part  of  the  instruction  stricken 
out  by  the  court  was  not  embraced  in  any  otlier  instruction, 
we  think  the  modification  was  erroneous.  Under  the  bill  oii 
particulars  furnished  by  the  people  tl;o  only  conspiracy  in- 
volved in  the  trial  related  to  *he  materials  furnished  and 
repairs  done  by  Schneider  at  the  normal  school,  and  the  de- 
fendants had  the  right  to  liave  the  jury  so  instructed.  As  has 
been  said  beloved  -.I'.uch  evidence  in  regard  to  fraudulent  trans- 
actions had  beeii  introduced,  relating  solely  to  labor  and  mate- 
rials at  the  court-house,  insane  asylum,  inlirmary,  and  hospital. 
This  evidence  being  before  the  jury,  they  were  as  likely  to 
convict  the  defentlants  of  a  conspiracy  in  regaril  to  rej)airs  at 
one  of  these  institutions  as  they  were  in  regard  to  the  repairs 
at  the  normal  school,  unless  they  were  instructe*!  by  the  court 
that  the  defendants  were  not  on  trial  for  conspiracy  to  defraud 
Cook  county  in  any  transactions  other  than  those  relating  to 
the  normal  school.  How  could  the  jury  know  u|)on  which 
one  of  the  live  transactions  relating  to  the  five  county  institu- 
tions they  were  authorized  to  ruturn  a  verdict,  unless  directed 
by  the  court  in  the  instructions ;■  It  is  a|i|)arent  the  jury  were 
left  entirely  in  the  dark  upon  this  (piestion,  and,  for  aught 
that  appears,  the  jury  may  have  been  sutislied  that  no  con- 


Mcdonald  v.  people. 


149 


spiracy  was  established  in  regard  to  the  repairs  for  which  bills 
were  rendered  in  reference  to  the  normal  school,  and  yet  found 
the  defendants  guilty  as  to  some  one  of  the  other  institutions  — 
an  offense  for  which  they  were  not  on  trial.  The  manner  in 
which  the  case  was  submitted  to  the  jury  by  the  instructions 
leaves  it  impossible  to  determine  whether  the  defendant  was 
convicted  of  the  offense  upon  which  he  was  put  upon  trial  or 
for  some  other  or  different  offense.  We  are  not  prepared  to 
hold  that  a  conviction  of  this  character  can  be  sustained. 

The  modification  of  the  instruction  was,  in  our  judgment, 
erroneous,  and  that  too  on  a  vital  point  in  the  case.  It  is 
claimed  that  other  irregularities  and  errors  occurred  on  the 
trial  which  led  to  the  conviction  of  the  defendant,  but  it  will 
serve  no  useful  purpose  to  consider  them  here.  We  are  satis- 
fied that  the  defendant  was  not  tried  in  conformity  to  law, 
and,  for  the  errors  indicated,  the  judgment  of  the  appellate 
and  criminal  courts  will  be  reversed,  and  the  cause  remanded 
for  another  trial. 


Maorudek,  J.  I  do  not  concur  in  this  decision.  Not  hav- 
ing time  to  prepare  a  dissenting  opinion,  I  refer  to  the  opinion 
of  Mr.  Justice  ]\[ouan,  of  the  appellate  court,  as  expressing  the 
views  of  the  case  which  seem  to  me  to  be  correct. 

Bailey,  J.,  having  passed  upon  this  case  in  the  appellate 
court,  took  no  part  in  its  consideration  here. 

SuoPE,  J.,  concurs  in  reversing  the  judgment,  but  does  not 
concur  in  all  the  reasoning  of  the  opinion. 

Note. —  Improper  argument  of  counsel. —  Bohanan  v.  State,  6  Ain.  Criui. 
H.,  487  and  note. 

Declarations  and  letters  of  one  conspirator  admissible  against  all.— 
Where  evidence  has  been  introduced  hyflficient  to  establish  a  prima  facie 
case  of  conspiracy,  letters  and  declarations  by  one  of  the  alleged  conspira- 
tors, written  or  made  while  attempting  to  carry  out  the  objects  of  the  con- 
spiracy, and  in  furtherance  thereof,  according  to  the  common  plan  or 
design,  are  admissible  against  the  others.     Card  v.  State,  109  Ind.,  415. 

Where  a  series  of  notes  are  forged  in  pursuance  of  a  system  of  conspir- 
acy, they  are  all  admissible  in  evidence  to  show  and  explain  the  system,  on 
trial  of  one  of  the  conspirators  for  forging  one  of  such  notes,  although  he 
is  shown  to  have  forged  them  all  in  pursuit  iice  of  the  system  of  conspiracy. 
Ibid. 


M 


^w 


150 


AMERICAN  CRIMINAL  REPORTS. 


Declarations  of  conspirator.— On  trial  of  an  information  for  conspiracy 
to  commit  forgery,  evidence  was  admitted  of  a  conversation  had  before 
the  conspiracy  between  one  of  the  defendants  and  a  witness,  in  wliiob.  the 
former  said  if  he  had  supposed  his  wife  was  going  to  die  he  would  liavi? 
had  a  deed,  but,  as  it  was,  he  had  not  a  scratch  of  the  pen  to  sliow  for  the 
money  he  had  put  into  the  land,  and  he  asked  witness  if  he  would  make 
out  a  deed  and  date  it  back.  Held,  that  this  conversation,  not  being  in  tlie 
presence  or  hearing  of  the  other  defendants,  and  not  having  been  brought 
to  their  notice,  and  by  tliem  ratified,  was  inadmissible  as  against  them. 
People  V.  Parker,  C4  Mich.,  000,  and  Anarchists'  Case,  0  Am.  Crim.  R.,  570. 

On  trial  of  one  of  several  defendants  charged  with  conspiracy  to  com- 
mit forgery,  evidence  of  a  conversation  between  another  defendant  and 
the  witness,  similar  to  a  conversation  between  the  witness  and  the  defend- 
ant on  trial,  was  admitted  to  prove  the  conspiracy.  Held  inadmissible,  as 
it  did  not  take  place  in  the  presence  or  hearing  of  tho  latter,  and  was  not 
ratified  by  him.     Ibid. 

Acts  prior  to  conspiracy. —  On  trial  of  one  of  several  defendants  charged 
with  conspiracy  to  commit  forgery,  evidence  was  received  of  the  acts  of 
another  defendant,  the  husband  of  the  deceased  person,  whose  land  was 
conveyed  by  the  forged  deed,  done  at  the  time  the  said  land  was  inven- 
toried by  the  appraisers  as  his  wife's  property.  There  was  no  evidence 
connecting  the  defendant  on  trial  with  tho  appraisal  or  of  the  fact  that  tlitf 
conspiracy  then  existed.    Held  inadmissible.     Ibid. 

On  trial  of  one  of  several  defendants  charged  with  conspiracy  to  com- 
mit forgery,  a  witness  testified  that  one  of  the  other  defendants  had  shown 
him  the  forged  deed  before  it  had  been  filed  for  record,  and  that  the  said 
defendant  was  then  claiming  title  to  the  land  under  it.  Held,  tiiat  this 
evidence  was  competent  as  against  the  defendant  on  trial,  provided  tlu* 
jury  should  find  there  was  at  that  time  a  conspiracy  to  defraud.     Ibid. 

Boycotting  is  a  conspiracy  when  it  interferes  icith  the  rights  of  others. — 
A  combination  of  persons  for  the  purpose  of  preventing  and  deterring  a 
corporation  from  taking  into  its  employ  certain  other  persons,  or  for  the 
purpose  of  intimidating  and  driving  away  from  the  employment  of  a  cor- 
poration certain  persons,  is  a  conspiracy  at  common  law;  and,  the  subject- 
matter  of  the  oflfense  being  the  same  here  as  in  England,—  namely,  an 
interference  with  the  property  rights  of  others,  and  a  restraint  upon  the 
lawful  prosecution  of  their  industries,  as  well  as  an  unlawful  control  over 
the  use  and  employment  by  workmen  of  their  labor  for  such  time, 
person  and  price  as  they  choose, —  it  is  applicable  to  the  situation  and  cir- 
cumstances of  this  state,  and  is  therefore  the  common  law  of  Vermont. 
State  V.  Stewart,  59  Vt.,  273. 

The  court  in  its  opinion  says:  In  1  Hawk.  P.  C,  ch.  27,  §  2  ( '•  a  book  of 
great  authority,"  2  Russ.  Crimes,  674),  it  is  laid  down  "  that  all  confedera- 
cies whatsoever  wrongfully  to  prejudice  a  third  person  are  highly  criminal 
at  common  law ; "  and  in  2  Whart.  Crim.  Law,  5<  2.322,  it  is  said  that  "  a 
combination  is  a  conspiracy  in  law  whenever  the  act  to  be  done  has  a 
necessary  tendency  to  prejudice  the  public,  or  oppress  individuals,  by  un- 
justly subjecting  them  to  the  power  of  the  confederates,  and  giving  effect 
to  the  purposes  of  the  latter,  whether  of  extortion  or  mischief;"  and  the 


Mcdonald  r.  people. 


151 


same  proposition,  in  one  forna  of  expression  and  another,  is  laid  down  in  2 
Bisli.  Criui.  Law,  §  172,  and  in  Desty.  Crim.  Law,  §  11,  and  in  3  Chit. 
Crini.  Law,  1138,  and  in  Archb.  Crim.  Pr.  &  PI.,  1830;  and  it  was 
said  by  Denman,  C.  J.,  in  Queen  v.  Kcnrick,  5  Q.  B.,  49:  "It  was  con- 
tended in  tiie  first  place  that  the  third  count  was  bad  by  reason  of  uncer- 
tainty, as  giving  no  notice  of  the  offense  charged.  The  whole  law  of 
conspiracy,  as  it  has  been  administered  at  least  for  the  last  hundred  years, 
lias  thus  been  called  in  question;  for  we  have  sufficient  proof  that  during 
that  jicriod  imy  combination  to  prejudice  another  unlawfully  has  been  con- 
sidered as  constituting  the  offense  so  called.  The  offense  has  been  held  to 
consist  in  the  conspiracy,  and  not  in  the  acts  committed  for  carrying  it 
into  effect ;  and  the  charge  has  been  held  to  be  sufficiently  made  in  general 
terms  describing  any  mi Uiu'ful  connpirac!/ to  effect  a  had  purpose;"  and 
B.iron  Rolfe,  in  lieg.  v.  Selsby,  5  Cox,  Crim.  Cas.,  495:  and  Tindal,  C.  J., 
in  i(i'(j.  r.  Harvin.  1  Car.  &  M.,  661 ;  and  Crompton,  J.,  in  Hilton  v.  Eckers- 
leij,  6  El.  &  BI..  47;  and  Gross,  J.,  in  Rex  v.  Maivhey,  6  Term  R.,  019;  and 
Lord  Mansfield,  in  licvv.  Eccles.  1  Leach,  Crown  Cases,  274;  and  Hill,  J., 
in  Witlf.hy  r.  Aulci/,  3  El.  &  El.,  516;  and  Campbell,  C.  J.,  in  Reg.  v.  Rotv- 
lands.  17  Adol.  &  E.,  671  (N.  S.);and  Baron  Bramwell,  in  Reg.  v.  Druitt,  10 
Cox,  Crim.  Cas..  592;  and  Brett,  J.,  in  Reg.  v.  Bitnn,  12  Cox,  Crim.  Cas., 
316:  and  Maiins,  V.  C,  in  Springhead  Co.  v.  Riley,  L.  U.,  6  Eq..  551;  and 
Coleridge,  C.  J.,  in  Mognl  S.  S.  Co.  v.  McGregor.  15  Q.  B.  Div.,  476:  and 
.Shaw,  C.  J.,  in  Com.  v.  Hunt,  4  Mete.  Ill,  128;  and  Caton,  J.,  in  Smith  v. 
People,  25  111.,  17;  and  Gibson,  C.  J.,  in  Com.  v.  Carlisle,  Jour.  Jur.,  225; 
and  Chapman,  C.  J.,  in  Careiv  v,  Rutherford,  106  Mass.,  1, —  have  all  added 
their  indorsement  of  the  doctrine  advanced  as  early  as  the  work  of  Hawk- 
ins, supra,  and  it  is  manifest  that  we  are  compelled  to  forsake  the  literature 
of  doubt,  and  to  cleave  unto  that  of  authority.  See,  also,  Rex  v.  Fergur- 
son,  2  Starkie,  489;  Rex  v.  Bykerdike,  1  Moody  &  R.,  179;  People  v.  Fisher, 
14  Wend.,  9;  State  v.  Donaldson,  33  N.  J.  Law,  151;  Snoiv  v.  Wheeler,  113 
Mass.,  186;  State  v.  Noye.i,  25  Vt.,  415;  State  v.  Burnham,  15  N.  H.,  396; 
Morris  Coal  Co.  v.  Barclay  Coal  Co.,  68  Pa.  St..  173. 

Vice-Chancellor  Maiins,  in  the  case  cited  supra,  states  the  law  of  the 
subject  in  brief  but  intelligent  words:  "  Every  man  is  at  liberty  to  enter 
into  a  combination  to  keep  up  the  price  of  wages;  but  if  he  enters  into  a 
combination  for  the  object  of  interfering  with  the  perfect  freedom  of  ac- 
tion of  another  man,  it  is  an  offense  not  only  at  common  law,  but  under 
act  6  Geo.  IV.,  oh.  129." 


152 


AMERICAN  CRIMINAL  REPORTS. 


People  v.  TREADWELii. 


(69  Cal.,  220.) 

Embezzlement  :  Attorney  guilty  of—  Information  —  Instructions  —  Read- 
ing law  books  to  jury. 

1.  Embezzlement  by  attorney- at-law  —  Paysient  of  promissory  note  — 

CONCiEALMENT  AND  APPROPRIATION.—  A  venlict  of  embezzlement  would 
be  fully  warranted  in  a  case  where  an  attorney-at-law,  acting  as  agent 
for  the  payee  of  a  note,  received  the  amount  from  the  drawee  and  used 
the  same  for  his  own  purposes,  concealing  from  his  principal  the  fact 
of  the  payment  of  the  note. 

2.  Agent  —  Specl\l  service  —  Relations  after  termination  of  serv- 

ice and  PAYMENT  OF  compensation  —  Question  for  jury.— When  a 
person  is  employed  to  render  special  services  as  agent  for  another  his 
agency  ceases  with  performance  of  the  services  and  payiucnt  of  the 
compensation  therefor  (Civil  Code,  g  2355),  unless  there  is  an  express 
understanding  between  them,  or  it  may  be  implied  from  the  circum- 
stances that  as  to  matters  growing  out  of  the  original  jjurpose  of  the 
agency  the  relations  between  the  parties  survived ;  and  as  to  this 
question  the  jury  is  to  decide. 

3.  Averment  of  ownership  —  Promissory  note  indorsed.  —  The  abso- 

lute indorsement  of  a  promissory  note  does  not  relieve  the  indorser 
from  liability  upon  it.  He  has  still  an  interest  in  it  to  see  that  any 
agent  of  his  authorized  to  collect  and  pay  it  over  performs  liis  duty : 
and  if,  after  his  indorsement,  the  indorsee  gives  such  indorser  the  pos- 
session and  control  of  the  note  to  collect  interest  upon  it  for  his  benefit, 
or  to  otherwise  control  it,  that  would  be  sufficient  to  sustain  an  aver- 
ment of  an  ownership  in  an  information  for  embezzlement. 

4.  Service  —  Agent  and  servant. —  In  the  sense  of  service,  an  agent  is 

the  servant  of  his  principal;  hence  designating  him  in  an  information 
or  indictment  for  embezzlement  as  agent  and  servant  is  not  such  :i 
misnomer  of  his  capacity  as  affects  any  of  his  substantial  rights. 

5.  Specification  as  to  property  embezzled. —  Is  is  not  necessary  to 

specify,  in  an  information  for  embezzlement,  the  coin,  number  or 
kind  of  money  embezzled. 

6.  Instruction  as  to  fraudulent  intent.— Upon  a  trial  for  embezzle- 

ment,—  that  is,  "the  fraudulent  appropriation  of  property  by  a  person 
to  whom  it  has  been  intrusted,"—  within  section  503,  Penal  Code,  since 
an  essential  elpn)ent  of  the  offense  is  a  fraudulent  intent,  an  instruc- 
tion relating  to  wliat  constitutes  embezzlement,  and  another  relating 
to  the  question  of  fraudulent  intent  in  the  offense,  both  in  substance 
containing  the  provisions  of  sections  506  and  508  of  the  Penal  Code, 
were  proper  to  be  given  by  the  court  to  the  jury  for  their  informiition. 

7.  Witness—"  False,"  "  wilfully,"  etc.,  in  instruction.—  An  instruc- 

tion to  the  jury:  "  A  witness  false  in  one  part  of  his  testimony  is  to 
be  distrusted  in  other  parts," — being  substantially  the  language  of 
subdivision  3,  section  2061,  Code  Civil  Procedure,  is  not  erroneous  be- 


PEOPLE  V.  TREADWELL, 


153 


cause  of  the  absence  of  the  word  "  wilfully  "  before  the  word  "  false  " 
therein. 
8.  Reading  or  law  books  to  jury,— The  refusal  of  the  court  to  stop,  at 
the  instance  of  the  defendant,  the  reading  of  extracts  from  law  books 
to  the  jury  by  the  people's  counsel,  in  the  course  of  his  argument,  is 
not  a  reversible  error. 


Appeal  from  Superior  Court,  Yolo  County. 

Ilarfling  tf*  Going  and  F.  E.  Baher,  for  appellant. 
E.   C.   Marshall,  attorney-general,    G,   B,   Darwin,  F.   S. 
Sprague  and  J.  Graig,  for  respondent. 

McKee,  J.  The  defendant  in  this  action  was  convicted  of 
enibtzzlement.  He  appeals  from  the  judgment  and  an  order 
denying  his  motion  for  a  new  trial.  Tlie  motion  for  a  new- 
trial  was  made  upon  the  grounds  that  the  verdict  was  against 
the  evidence,  and  contrary  to  law,  and  that  the  court,  against 
the  objections  and  exceptions  of  the  defendant,  erred  in  mat- 
ters of  law  at  the  trial,  and  in  its  instructions  to  the  jury.  As 
li\id  in  the  information,  the  charge  is  that  on  tlic  12th  of  De- 
cember, 1SS3,  the  defendant  was  "agent  and  servant"  of 
(,'harles  llaneke,  and  in  that  capacity  received  for  his  prin- 
cipal, in  trust  for  him,  the  sum  of  $>2,l(i2.G0,  lawful  uione}'  of 
the  United  States,  which  afterwards,  on  the  1.5th  of  August, 
1884,  in  violation  of  his  trust,  he  fraudulently  and  feloniously 
converted,  appropriated  and  embezzled. 

Upon  the  lirst  ground  —  that  the  verdict  was  against  evi- 
dence and  contrary  to  law  —  it  is  contended  that  there  was  no 
evidence  establishing,  or  tending  to  establish,  the  allegation,  as 
laid  in  the  information,  that  the  money  charged  to  have  been 
embezzled  came  into  the  hands  of  the  defendant  by  virtue  of 
his  trust  as  the  servant  and  agent  of  llaneke.  But  admittedly, 
at  the  time  of  the  transactions  upon  which  the  charge  was 
founded,  the  defendant  was  a  practicing  attorney-at-law  in  the 
town  of  AVoodland,  in  Yolo  county;  and  on  the  12th  of  De- 
cember, 1883,  he  received  from  Isaac  (^uinn  ^2,102.00,  in  pay- 
ment of  a  promissory  note  and  mortgage  which  Quinn  had 
given  to  Carl  llaneke  as  security  for  the  payment  of  the  pur- 
chase money  due  by  him  for  a  tract  of  land  which  he  had  be- 
forehand purchased  from  llaneke;  and  upon  receiving  the 


wn^ 


154 


AMERICAN  CRIMINAL  REPORTS. 


money  ho  gave  Quinn  a  receipt  for  the  same,  worded  as  fol- 
lows : 
"$2,102.01.  ■\VoouLAND,  Cal.,  December  12,  1883. 

"lleccivod  of  Isaac  Quinn  twenty-one  hundred  and  two  dol- 
lars, to  be  applied  in  payment  of  his  note  of  March  20,  1881, 
to  Carl  Tlaneke.  W-  B-  Tkkadwell." 

There  is  no  question  but  that  the  money  was  received  in 
payment  of  Quinn's  note  to  llaneke,  and  if  the  defendant  re- 
ceh-ed  it  as  the  agent  of  llaneke,  lie,  as  an  attorney-at  law, 
must  have  known  that  the  law  imposed  upon  him  tiic  duty  of 
paying  it  over  immediately  to  the  person  for  whom  he  re- 
ceived it.  But  the  evidence,  without  conflict,  shows  that  he 
failed  to  inform  llaneke  of  the  payment  of  the  note;  that  he 
concealed  from  him  the  fact  of  its  payment;  that  lie  kept  the 
money;  and,  as  he  confessed,  used  it  for  his  own  ])urposes. 
Upon  those  facts,  if  they  were  all  the  facts  in  the  case,  the 
verdict  of  embezzlement  would  be  fully  warranted. 

But  it  was  and  is  insisted  that  at  the  time  the  defendant  re- 
ceived the  money  he  was  not,  in  fact  or  law,  acting  as  the 
"agent  and  servant"  of  llaneke,  and  did  not  receive  the 
money  for  him;  but  that  ho  received  it  for  a  Mrs.  Wi.se,  to 
whom  the  note  upon  which  the  money  was  paid  belongv^d,  and 
that  she  authorized  him  to  keep  the  mone}'  for  her.  The  evi- 
dence showed  that  Mrs.  Wise  was  the  daughter  of  llaneke, 
and  it  tended  to  show  that  she  had  advanced  to  her  father  the 
greater  portion  of  the  money  for  which  the  note  collected  by 
the  defendant  was  given,  and  that  her  father,  at  a  time  when 
he  was  sick  and  expected  to  die,  indorsed  the  note  to  her,  so 
that  she  might  receive  and  receipt  for  the  moneys  which  were 
payable  upon  it;  that  she  informed  the  defendant,  as  her 
father's  agent  for  the  collection  of  the  note,  of  the  indorse- 
ment, and  communicated  with  him  in  that  capacity.  Admit- 
tedly, it  was  also  proved  that  llaneke  had  retained  and  em- 
ployed the  defendant  in  the  year  1880  to  collect  the  princi- 
pal and  interest  of  a  note  and  mortgage  upon  a  tract  of  land 
which  had  been  sold  to  Quinn,  the  maker  of  the  note;  that  the 
land,  at  the  time  of  the  sale,  was  subject  to  a  trust-deed  in  the 
nature  of  a  mortgage,  to  secure  an  indebtedness  due  by  a  for- 
mer owner  of  the  land  to  the  Sacramento  Bank;  that  Quinn 
bought  and  entered  upon  the  land  as  purchaser,  subject  to  the 


PEOPLE  V.  TREADWEIX. 


155 


trust  (lectl;  and  that  while  his  note  nnd  mortgage  were  in  the 
hands  of  defendant  for  collection,  Quinn  was  unable  to  pay  his 
own  note  or  the  indebtedness  to  the  bank,  and  the  bank  was 
about  to  sell  the  land  under  its  trust-deed  unless  payment  of 
its  demand  was  forthcoming.  In  that  condition  Ilanelre,  upon 
the  advice  and  by  the  services  of  his  attorney, —  the  defend- 
ant,—  redeemed  the  laiul  by  paying  the  bank  its  demand. 
The  bank  reconveyed  the  land  to  him,  and  Quinn,  by  agree- 
ment with  him,  substituted  for  his  note  and  mortgage  a  new 
note  and  mortgage  trust-deed,  covering  the  principal  sum  of 
his  old  note  and  the  amount  of  money  which  llaneke  had  paid 
for  redemption.  Tliis  substituted  note  was  as  follows: 
"$2,450.  Woodland,  Yoi.o  Co..  Cal.,  :^rarch  20,  1881. 

"Three  years  alter  date,  lor  value  received,  1  promise  to 
pay  to  the  order  of  Carl  llaneke,  at  the  Bank  of  California, 
in  the  city  and  county  of  ISan  Francisco,  stale  of  California, 
the  sum  of  two  thousand  four  hundred  and  fifty  dollars  in  gold 
coin  of  the  United  States  of  America,  with  interest  thereon,  in 
like  gold  coin,  at  the  rate  of  one  per  cent,  per  month  from  date 
until  paid.  Interest  to  be  paid  every  three  months,  and  if  not 
so  paid  to  be  added  to  and  become  a  part  of  the  principal,  and 
draw  like  interest;  and  in  case  said  interest  be  not  paid  every 
three  months,  this  note  to  be  collectible  at  the  option  of  the 
holder." 

The  new  note  and  trust-deed  were  delivered,  and  after  the 
latter  was  recorded  the  old  mortgage  was  released  and  re- 
turned to  Quinn;  but  llaneke  retained  possession  of  the  old 
note  until  Quinn  paid  a  balance  of  interest  due  u|)on  it,  which 
was  not  carried  into  the  new  note.  The  redemption  by  llaneke 
and  the  novation  by  Quinn  were  brought  about  by  the  serv- 
ices of  the  defendant.  He  drafted  and  supervised  the  execu- 
tion and  delivery  of  all  the  papers  required  to  clothe  the 
transaction  with  the  forms  of  law.  For  those  services  llaneke 
paid  him  on  the  day  the  transactions  were  cloi»d,  and  that 
payment,  it  is  insisted,  ended  the  defendant's  agency,  or,  as  he 
expresses  it  in  his  testimony,  given  as  a  witness  in  his  own  be- 
half: "My  employment  ceased  on  the  day  when  the  deed  of 
trust  was  drawn,  and  it  was  so  stated  at  the  time  to  the 
parties." 


>»■■■' 


156 


AMERICAN   CRIMINAL  REPORTS. 


No  doubt,  when  a  person  is  employed  to  render  special  serv- 
ices as  aj^ent  for  another,  that  his  agency  ceases  with  per- 
formance of  the  services  and  payment  of  compensation  therefor. 
Civil  Code,  *^  2355.  Between  such  persons  tiiere  exists  no 
longer  the  relation  of  principal  and  agent,  unless  there  is  an 
express  understanding  between  them,  or  it  may  bo  implied 
from  their  subseijuent  acts  and  conduct  that  the  person  who 
acted  in  the  ori«;inal  transactions  upon  the  retainer  and  em- 
ployment of  the  other  continued  to  act  in  the  same  capacity 
in  other  matters  arising  out  of  the  original  transactions. 
Whether  the  defendant  continued  to  act  for  llaneko  after 
payment  for  his  past  services,  in  collecting  for  him  the  interest 
and  principal  of  the  now  note,  was  therefore  a  question  for  the 
jury.  U;  jn  that  question  there  was  a  conflict  of  evidence. 
The  jury  found  against  the  defendant  and  there  was  abundant 
evidence  to  sustain  the  verdict;  for  it  was  proved  that  both 
the  old  and  the  new  notes  of  Quinn  were  left  by  Ilaneke  in 
the  hands  of  the  defendant,  with  authority  to  collect  the  interest 
due  upon  the  old,  and  to  forward  the  new  to  the  Bank  of  Cali- 
fornia to  be  deposited,  where,  u))on  payment  by  Quinn  of  the 
interest,  or  any  part  of  the  principal  a.s  it  became  duo,  the 
moneys  were  to  be  forwarded  on  account  of  Ilaneke.  Under 
that  authority  the  defendant  forwarded  to  the  bank  the  new 
note  and  the  first  instalment  of  interest  paid  upon  it,  accom- 
panied with  a  letter,  as  follows: 

"Woodland,  Cal.,  June  24,  1881. 

^^  Bank  of  California:  I  herewith  inclose  note  of  Isaac 
Quinn,  payable  to  order  of  Carl  Ilaneke  (510  Filbert  St.,  S.  F.), 
to  be  held  by  you  for  collection ;  also  check  for  seventy-three 
dollars  and  fifty  cents,  payable  to  the  order  of  Carl  ilaneke, 
forwarded  by  Mr.  Quinn  in  payment  of  first  instalment  of 
interest.  I  have  notified  Mr.  Ilaneke  of  the  forwarding  of 
same.     Please  acknowledge  receipt. 

"  Yours,  W.  B.  Treadwell. 

"Any  communication  for  Mr.  Quinn  may  be  addressed  to 
my  care  at  Woodland,  Cal." 

And  on  the  24th  of  September,  1881,  he  collected  the  old 
note  and  gave  Quinn  his  receipt,  as  follows: 
"  $62.18.  Woodland,  Cal.,  September  24,  1881. 

"Received  of  Isaac  Quinn  sixty-two  and  eighteen  one-hun- 


PEOPLE  V.  TREADWELL. 


167 


drctlths  dollars,  in  full  for  balance  due  on  promissory  note, 
date  of  August  15,  1877,  for  $2,450. 

"Carl  IIankkk. 

"  Per  W.  B.  TiJKADWKi.L." 

Thereafter,  with  one  or  two  exceptions,  when  ho  requested 
another  to  act  for  him  in  his  absence  from  Woodland,  he  con- 
tinued to  receive  from  Quinn,  upon  the  new  note,  the  interest 
as  it  became  duo,  and  also  part  of  the  i)rincipal,  which  he  for- 
warded regularly  to  the  Bank  of  California  on  account  of 
Ilaneko;  and  this  course  of  dealing  was  continued  until  tho 
collection  of  the  note  in  December,  1888.  Admittedly,  at  that 
'ime,  the  defendant  was  not  acting  as  the  ,'igont  or  servant  of 
Quinn.  lie  himself  testified:  "I  was  not  representing  Mr. 
Quinn  at  all.  I  was  never  the  agent  of  ^fr.  Quinn  at  any 
time  in  the  world.  I  did  not  assume  to  bo  (^uinn's  agent  in 
taking  his  money."  And  to  the  question,  •'  How  camo  you  to 
take  the  money?"  he  answered:  "  I  took  it  as  tho  ufent  of 
Mrs.  Wise."  AVheti»er  tho  defendant  took  the  money  as  the 
agent  of  Mrs.  Wise  or  of  Ilancke  was  therefore  squarely  in 
issue. 

To  maintain  the  issue  on  his  part  tho  defendant  gave  in  evi- 
dence a  letter,  of  which  the  following  is  a  copy: 

"San  Fkamisco,  March  27,  1883. 

"J//*.  W.  B.  TfCiuhrcU  —  J)kar  Silt:  During  my  father's 
recent  dangerous  illness  he  deemed  it  advisable  to  arrange 
business  matters  to  his  satisfaction.  He  therefore  indorsed 
and  assigned  the  ])romissory  note  of  the  trust  deed  to  me,  and 
consequentiv  T  shall  sign  all  receipts  for  interest  or  monex'' 
sent  as  ])iiyment  on  note  hereafter;  the  trustees  have  been 
duly  notified  of  the  cliange.  AVill  you  have  the  kindness  to 
inform  ^[r.  (Juinn  of  the  fact,  and  recpiest  him,  when  he  for- 
wards interest  again,  to  have  the  eliock  at  the  bank  made  pay- 
able to  me.  Fatiier  is  much  better,  but  being  over  eighty 
years  of  age  he  does  not  feel  able  to  have  the  cares  of  business 
thrust  upon  him. 

'*  Hoping  these  few  lines  may  llnd  your  family  in  good  health, 
I  remain, 

"Yours,  truly,  Hakkikt  A.Wise." 

But  in  connection  with  that  letter  there  was  given  evidence 
tending  to  prove  that  the  note  was  made  up  of  two  sums,  viz., 


'tm 


'^^•p' 


158 


AMERICAN  CRIMINAL  REPORTS. 


$1,650  and  $800,  the  first  of  which  had  been  advanced  by  the 
dauo-iiter  to  her  father  to  enable  him  to  redeem  the  land,  and 
the  second  was  what  Quinn  owed  her  father  on  the  land  on 
the  old  note  and  mortgage;  that  with  the  interest  of  these  two 
sums  of  money  the  daughter  supported  herself  and  father,  for 
she  was  an  invalid,  and  her  father  was  very  old  and  infirm; 
so  that  when  he  became  disabled  by  sickness  from  going  to 
the  bank  to  get  his  interest  as  it  was  forwarded  for  him  by 
the  defendant,  she  undertook  the  business,  and  recognizing 
that  the  defendant  was  her  father's  attorney  and  agent  for 
that  purpose,  she  communicated  with  him  in  that  capacity. 
The  indorsement  of  the  note,  in  the  circumstances  disclosed 
by  her  letter,  did  not  have  the  effect  of  disturbing  the  legal 
relation  between  llaneke  and  the  defendant,  or  of  revoking 
any  authority  he  had  to  receive  and  forward  the  money;  and, 
in  fact,  he  did  receive  and  forward  as  usual  all  payments  made 
on  the  note  until  the  12th  of  December,  1883,  when  Quinn 
paid  him  in  full  the  amount  of  princijial  and  interest  due  upon 
the  note. 

As  a  witness  in  his  own  beluilf,  tho  defendant  says  in  his 
evidence  that  Mrs.  AVise  knew  that  he  had  collected  the  note; 
that  at  her  request  he  concealed  the  fact  from  her  father  and 
agreed  to  keep  possession  of  the  money  until  such  time  as 
either  of  them  could  safely  reinvest  it  so  as  to  make  it  inter- 
est-bearing for  her  father's  support;  and  that,  in  the  meantime, 
he  should  continue  to  forward  the  interest  as  it  would  become 
due,  so  as  to  keep  up  the  appearance  of  non-payment.  But 
the  evidence  of  his  letters  and  conduct  and  acts  disproved 
such  an  arrangement.  It  is  clearly  deducible  from  his  own 
testimony  he  knew  that  Mrs.  Wise,  notwithstanding  the  in- 
dorsement of  the  note,  had  given  full  control  over  it  to  her 
father  after  recovery  from  his  sickness,  and  that  she  recognized 
the  defendant  as  her  father's  attorney  and  agent  for  its  collec- 
tion. Admittedly,  after  defendant  received  the  money,  he 
never  personally  spoke  to  or  saw  Mrs.  AVis'\  In  j\[arch,  1884, 
she  fell  sick  of  an  incurable  disease,  and  was  taken  to  the 
German  Hospital  in  San  Francisco,  where  she  lingered  until 
October  of  that  year  and  died.  He  says  in  his  testimony  that 
he  corresponded  with  her  upon  the  subject  of  the  money.  Xot 
a  scrap  of  writing  from  her  corroborant  of  his  statement  was, 


PEOPLE  V.  TREADWELL. 


159 


however,  produced.  He  claimed  that  her  letters  to  him  were 
lost,  but  neither  was  there  i'ound  among  the  papers  of  Mrs. 
Wise,  after  her  death,  any  letters  from  him. 

Evidently,  from  his  own  testimony,  he  purposely  concealed 
the  payment  of  the  note  from  Haneke  and  his  daug'hter.  Both 
were  wholly  ignorant  of  the  fact,  and  when  the  first  quarterly 
interest  on  the  note  for  the  year  1884  would  have  become  due 
and  payable  if  the  note  had  not  been  paid,tl-.cy  became  anxious 
about  it,  because  it  was  not  forwarded  to  the  banlc,  and  in  their 
distress  they  got  a  law^'cr  to  write  about  the  interest  to  the 
defendant,  wlio  in  reply  wrote  as  follows: 

"Woodland,  AprilT,  1884. 

"u4.  Morgenthal,  E>^q. —  Dear  Siu:  Yours  of  the  5th  Inst, 
at  hand.  When  I  telegraphed  to  you  the  other  day  I  supposed 
that  I  could  see  ^Vw  (^uinn  by  Tiiursday,  Init  I  fuuiul  that  he 
was  away  and  out  of  the  I'each  of  .letters.  I  suppose  he  has 
made  a  mistake  as  to  the  date.  I  have  sent  the  amount  to-day 
to  the  l>ank  of  California  out  of  my  own  money,  as  I  know 
^Ir.  Qiiinn  is  all  right.  Please  present  my  compliments  to 
^[rs.  Wise  and  ]\[r.  Uanoke,  and  tell  them  that  I  will  look  out 
for  the  matter  myself  hereafter. 

"  T:r.ly  yours,  W.  W  TjmcadweliJ' 

But  the  defendant  did  not  forward  the  ne.\t  quarterly  inter- 
est which  would  have  become  due,  and  Ilaneke  a..d  his  daugh- 
ter caused  a  letter  to  bo  written  to  Quinn  himself,  threatening 
him  to  call  in  the  |)rincipal  of  the  note  if  he  did  not  continue 
to  pay  the  interest  promptly;  in  answer  to  which  Quinn  wrote 
them  in  July,  1SS4,  that  he  had  paitl  the  note  in  full  to  their 
attorney  seven  months  before;  and  then,  for  the  first  time,  the 
unspoken  secret  of  the  defendant  was  made  known  to  Ilaneke 
and  his  daughter. 

TIjo  evidence  is  overwhelming  that  Quinn.  when  he  jmid  his 
moneys  upon  the  note,  acted  with  liie  delendant  as  the  attorney 
and  agent  of  Ilaneke  for  the  purj)ose  of  receiving  and  forward- 
ing theui  to  Ilaneke.  He  so  understood  it  from  Haneke  and 
the  defendant  himself.  He  knew  nothing  of  the  indorsement 
of  the  note  to  Mrs.  AVise,  for  the  defendant  had  not  informed 
him.  The  defendant  was  therel'ori",  when  he  received  the 
nu)ney  from  Quinn,  in  fact  the  agent,  or  acting  as  the  agent, 
of  Haneke,  and  he  is  estopped  in  law  from  denying  that  ho 


160 


AMERICAN  CRIMINAL  REPORTS. 


was  the  agent.  "In  reason,"  says  Bishop  in  his  work  on 
Criminal  Law  (section  397),  "whenever  a  man  chiiins  to  bo  a 
servant  while  getting  into  his  possession  by  force  of  his  claim 
the  property  to  l)e  embezzled,  he  should  be  held  to  bo  such  on 
liis  trial  for  the  embezzlement.  .  .  .  AVhen  a  man  has  re- 
ceived a  thing  of  anotlier  under  the  claim  of  agency,  he  cannot 
turn  round  and  tell  the  principal  asking  for  the  thing:  'Sir,  I 
was  not  your  agent  in  taking  it,  but  a  deceiver  and  a  scoun- 
drel.'" See  Ex  parte  IMlcy,  31  Cal.,  108.  The  law  of  the 
question  is,  as  Lord  Mansfield  put  it  to  a  party  to  an  action 
wiio  attempted  to  deny  the  assumed  authority  under  which  he 
had  done  an  act  attended  with  fraud  and  falsehood:  "Xo;  it 
sliall  be  as  yon  represent  it  to  be.  N"o  man  shall  set  up  his 
own  iniquity  as  a  defense  any  more  than  as  a  cause  of  action." 
It  is  claimctl,  however,  that  the  information  does  not  sup- 
port the  conviction  because  "it  charges  that  defendant  was  the 
'agent  and  servant'  of  Ilaneke;  that  this  mone\' came  into 
his  hands  '  by  virtue  of  his  trust  as  said  servant  and  agent: 
and  that  the  alleged  conversion  was  not  in  the  duo  and  lawful 
execution  of  his  trust  as  said  agent  and  servant.'"  The  jury 
must  have  found  that  the  money  came  into  the  hands  of  the 
defendant  as  agent  in  fact,  or  as  the  pretended  agent,  (jI' 
Ilaneke,  and  therefore  by  virtue  of  the  confidence  reposed  in 
him;  and  as  in  either  position  he  is  estopped  I'roni  denying 
that  he  received  the  money  in  that  capacity,  the  averment  in 
the  information  that  he  received  it  as  "servant  and  agent."  or 
as  "agent  and  servant,"  is  not  a  defective  or  insuHicicnt  aver- 
ment of  the  ca])aeity  in  which  the  money  was  received.  True, 
the  words  ''agent"  and  "servant"  are  not  wholly  synonymal; 
both,  however,  relate  to  voluntary  action  under  employment, 
and  each  expresses  the  idea  of  service.  Tli';  service  |)orform 
able  by  a  servant  for  his  employer  may  be  inferioi*  in  degree 
to  work  done  by  an  agent  for  his  princii)al.  A  servant  is  a 
worker  for  another  under  an  express  or  im])lied  employment: 
so  also  is  an  agent,  only  he  woi-ks  not  only  fur,  but  in  the  place 
of,  his  principal.  In  the  sense  of  service,  an  agent  is  the  serv- 
ant of  his  princijjal;  therefore  designating  him  in  an  informa- 
tion or  indictment  for  embezzlement  as  agent  and  servant  is 
not  such  a  misnomer  of  his  cai)acitv  as  alfects  anv  of  his  sub- 
stantJal  rights. 


PEOPLE  V.  TREADWELL. 


IGl 


But  that  being  so,  it  is  insisted  that  Ilaneke,  having  indorsed 
and  delivei'iHl  tlie  note  to  Mrs.  Wise,  had  no  property  in  the 
note,  or  tlie  mone}'  paid  upon  it,  which  came  into  the  hands 
'f  tl  <•  defendant.  All  the  circumstances  in  connection  with 
1.10  indorsement  and  delivery  of  the  note  to  Mrs.  AVise  were 
wii'x  the  jury,  and  whether. Haneke  had  any  property  in  it  at 
the  tiuK'  tlie  money  was  received  upon  it  was  a  question  of  fact 
for  theii  'U  i mination.  The  absolute  indorsement  of  a  promis- 
sor}'  note  does  not  relieve  the  indorser  from  liability  npon  it. 
lie  still  has  an  interest  in  it  to  see  that  anv  agent  of  his  au- 
liiorized  to  collect  and  pay  it  over  performs  his  duty;  and  if, 
after  ins  indorsement,  the  indorsee  gives  him  the  possession 
and  Coiirol  of  the  note,  to  collect  the  interest  upon  it  for  his 
benefit,  or  to  otherwise  control  it,  that  would  be  sufficient  to 
sustain  an  averment  of  an  ownership  in  an  information  for 
embezzlement.  Any  legally  recognizable  interest  in  property 
is  sufficient  for  that  purpose. 

Taken  as  an  entirety,  the  charge  of  the  court  to  the  jury 
laid  down  the  law  fully  and  fairly  and  favorabW  for  the  de- 
fendant. Tlie  third  and  ninth  of  the  instructions  asked  by  the 
defendant  were  not  given,  but  the  points  presented  in  them 
were  covered  by  one,  two  and  four  of  the  instructions  asked 
by  defendant,  and  which  were  given  at  his  request. 

The  second,  seventh  and  eighth  of  the  instructions  asked  b}' 
the  people,  and  given,  wee  taken  substantially  from  sections 
8r)0n,  1)50  of  the  Penal  Code.  As  abstract  propositions  of  law 
tliey  were  admitted  to  be  correct;  but  it  is  contended  they  were 
inapplicable  to  the  case,  and  tended  to  mislead  the  jury  in  con- 
sidering their  verdict.  The  jffense  charged  was  embezzlement, 
which,  as  defined  by  the  Penal  Code,  is  "  the  fraudulent  appro- 
])riuti()n  of  projiertv  by  a  person  to  whom  it  has  been  intrusted." 
Penal  Code,  sec.  503.  An  essential  element  in  the  olTense  is 
therefore  a  fraudulent  intent  (id.,  ^§  501-508);  and  as  instruc- 
tion 2  related  to  what  constituted  embezzlement,  and  instruc- 
tion 8  to  the  question  of  fraudulent  intent  in  embezzlement, 
and  both  in  substance  contained  the  provisions  of  sections  506 
and  508  of  the  Penal  Code,  it  was  proper  for  the  court  to  give 
them  to  the  jury  as  matter  of  law  for  their  information.     Id., 

g  1127. 

Vol.  VII—  11 


1G2 


AMERICAN  CRIMINAL  REPORTS. 


The  seventh  instruction,  copied  from  section  956  of  the 
Penal  Code,  was  not  applicable,  because  there  was  no  errone- 
ous allegation  as  to  the  person  injured.  The  information 
charged  the  embezzlement  of  the  personal  property  of  Carl 
llaneke.  As  to  the  offense  itself,  the  name  of  the  party  in 
jured  or  the  description  of  the  property,  there  was  no  defective 
allegation.  It  was  not  necessary  to  specify  in  the  information, 
or  prove  at  the  trial,  the  coin,  number  or  kind  of  money  em- 
bezzled. Penal  Code,  sees.  950,  1131.  And  as  the  allegations 
of  the  information  were  sufficient  in  respect  to  these  things, 
there  was  no  prejudicial  error  in  reading,  as  an  abstract  propo- 
sition, the  section  of  the  Penal  Code  contained  in  the  objec- 
tionable instruction.  It  did  not  affect  any  i^.ubstantial  right  of 
the  defendant.     Id.,  §§  1248,  150-t. 

The  following  instruction  is  also  challenged:  "  A  witness 
false  in  one  jiart  of  his  testimony  is  to  be  distrusted  in  other 
parts."  This  is  substantially  the  language  of  subdivision  3, 
section  20G1,  Code  Civil  Procedure,  and  is  correct.  But  it  is 
said  to  be  erroneous  because  the  word  "  wilfully  "  was  not 
inserted  immediately  before  the  word  "false"  in  the  instruc- 
tion. The  defendant  did  not  ask  for  a  modification  in  that 
regard;  but  the  omission  of  the  word  did  not  affect  the  cor- 
rectness of  the  ^proposition.  In  People  v.  Sprague,  53  Cal., 
401,  a  like  instruction  was  asked  by  the  defendant  in  aci'iminal 
action.  The  trial  court  did  not  give  the  instruction  as  asked, 
but  of  its  own  motion  inserted  the  word  "  wilfully  "  immedi- 
ately before  the  word  "false,"  and  with  that  correction  gave 
the  instruction  to  the  jury  against  the  defendant's  objection 
and  exception,  and  on  appeal  it  was  held  that  the  insertion  of 
the  word  "wilfully"  in  the  instruction  did  not  change  the 
effect  of  the  instruction  as  offered.  The  instruction  as  given 
was  therefore  virtually  the  instruction  offered.  Upon  the  au- 
thority of  that  case,  People  v.  JIlcls,  53  Cal.,  354,  and  People 
V.  Soto,  59  Cal.,  367,  were  also  decided. 

It  is  also  objected  that  the  court,  against  the  objection  and 
exception  of  defendant,  refused  to  stop  the  attorney  for  the 
people  from  reading,  in  the  course  of  his  argument  to  the  jury, 
extracts  from  "books  of  law  and  reports  of  judicial  decisions 
on  matters  of  law."    In  Peoj)le  v.  Anderson,  44  Cal.,  65,  the 


PEOPLE  V.  TREADWELL. 


163 


practice  of  reading  from  law  books  in  an  argument  to  a  jury 
was  considered  as  improper;  but  it  was  held  not  to  be  a 
reversible  error,  because  it  was  a  matter  within  the  discretion 
of  tlie  trial  court,  and  unreviewable  by  this  court  except  for 
an  ajiparent  abuse  of  discretion.  The  record  shows  that  the 
act  was  permitted  by  the  court  as  illustrative  of  the  argument 
made  to  the  jury,  and  that  the  court,  in  its  charge  to  the  jury, 
instructed  them  upon  the  subject  as  follows: 

"  You  are  the  exclusive  judges  of  the  testimony,  and  also 
the  credibility  of  the  evidence,  and  it  is  the  duty  of  the  court 
to  instruct  you  as  to  the  law  of  the  case  upon  which  you  must 
act  in  arriving  at  your  verdict  in  this  case.  There  has  been 
a  great  deal  of  law  read  to  you  by  most  of  the  attorneys  in 
the  case,  but  it  is  your  duty  to  decide  the  case  according  to 
the  law  as  it  is  given  to  you  by  the  court,  regardless  of  any 
law  which  has  been  read  to  you  from  the  books  by  any  of  the 
counsel  in  the  case." 

There  was  no  prejudicial  error  in  admitting  in  evidence,  for 
the  purpose  for  which  it  was  offered,  the  letter  to  Quinn,  writ- 
ten lor  Ilaneke  and  his  daughter  by  their  attorney  in  San 
Francisco;  nor  was  there  an}'  abuse  of  discretion  in  postponing 
the  trial  at  the  request  of  the  people  to  procure  the  attendance 
of  witnesses. 

We  find  no  reversible  error  in  the  record 
order  affirmed. 


Judgment  and 


MouuisoN,  C.  J.,  and  Ross,  Myrick  and  Tuorntox,  JJ.,  con- 
cur. 

Note. —  A  mail-rider  in  the  employment  of  the  United  States  who  steals 
tlie  money  in  a  registered  letter  from  a  mail-bag  is  not  t!ie  agent  or  servant 
of  the  person  who  sent  the  letter,  within  Code  of  1886,  section  37'J.'5,  which 
punishes  embezzlement  by  an  agent.     Brewer  v.  State,  83  Ala.,  11(3. 

By  drainage  contmissioners, —  A  drainage  commissioner  is  an  officer  of 
the  county  for  wiiich  he  is  appointed,  within  the  meaning  of  section  1034, 
Revised  Statutes  of  Indiana  of  1881 ;  and  where  he  resigns  before  the  expi- 
ration of  his  term,  and  fraudulently  falls  and  refuses  to  paj'  over  to  his 
successor  money  received  by  virtue  of  his  office,  and  feloniously  embezzles, 
retains  and  converts  the  same  to  his  own  use,  he  is  criminally  liable  under 
said  section.    State  v.  Wells,  112  Ind.,  237. 

President  of  corporation. —  In  Jackson  v.  State,  76  Ga.,  531,  it  is  held 
admissible  to  show  that  the  books  of  the  company  whose  funds  were  em- 
bezzled, and  of  which  defendant  was  president,  had  been  falsified  by  fraud- 


wrw 


164 


AMERICAN  CRIMINAL  REPORTS. 


ulent  entries  made  with  a  view  to  conceal  the  embezzlement,  at  the 
defendant's  instance  and  witli  his  knowledge,  whether  before  or  after  tlie 
act  charged. 

Other  acts  of  embizzkment  of  like  character  may  be  fihoim  though  not  set 
out  in  indictment  as  bearing  upon  question  of  intent.    Ibid. 

State  not  bound  to  prove  each  of  the  several  acts  of  embezzlement 
cliarged.    Ibid. 


State  v.  Thompson.* 

(80  Me.,  194.) 

Evidence  :  Proof  of  handwriting. 

1.  EviDEXCE  —  Proof  of  uandwritino. —  When  the  genuineness  of  hand- 

writing is  in  question,  it  may  be  proved  by  comparison  with  other 
liandwriting  of  tlie  party  sought  to  be  charged,  admitted  or  proved  to 
be  genuine;  and  sucli  writing  is  admissible  in  evidence,  whetlier  perti- 
nent to  the  issue  or  not,  as  a  standard  for  the  purpose  of  comparison 
with  tlie  handwriting  in  controversy. 

2.  Must  be  proved  or  adjutted  to  be  genuine. —  Before  such  writing 

can  be  used  as  a  standard  of  comparison,  it  must  be  proved  or  admit- 
ted to  be  tlio  genuine  handwriting  of  the  party  souglit  to  be  charged,  to 
the  satisfaction  of  the  presiding  judge,  and  so  far  as  liis  decision  is  of 
a  question  of  fact  it  is  final  if  there  is  proper  evidence  to  supjXJrt  it. 
8.  Experts. —  Such  standard  may  be  compared  by  experts  in  the  presence 
of  the  jury,  and  they  may  express  an  opinion  founded  upon  sucli 
comparison  as  to  wliether  the  controverted  writing  is  genuine  or]  not. 

Exceptions  from  Supreme  Judicial  Court,  York  County. 

Indictment  for  libel.  The  jury  returned  a  verdict  of  guilty, 
atid  the  defendant  alleged  exceptions  to  the  admission  of  the 
testimony  discussed  in  the  opinion. 

//.  //.  Burhank,  county  attorney,  for  the  state. 
ffamiltou  &  JIaley,  for  defendant. 

Foster,  J.  The  defendant  wag  tried  upon  an  indictment  for 
libel.  In  the  trial  of  the  case  the  government  offered  certain 
writings,  as  being  in  the  handwriting  of  the  defendant,  for 
the  purpose  of  being  used  as  a  standard  of  comparison.  Two 
witnesses  claiming  to  have  seen  the  defendant  write,  and  to  be 
acquainted  with  his  handwriting,  Avere  introduced,  and  testi- 

1  See  note. 


STATE  V.  THOMPSON. 


165 


fied  that  the  writings  thus  offered  \\<ive  in  the  handwriting  of 
the  defendant.  Thereupon  the  court  admitted  tlieni  for  the 
purpose  for  which  they  were  offered,  against  the  defendant's 
objection.  Afterwards,  during  the  trial, expert  testimony  was 
introduced  by  the  government,  and  these  writings  were  used 
by  them  as  a  standard  of  comparison,  to  whicli  the  defendant 
also  objected.  To  the  ruling  and  the  decision  of  the  court 
admitting  the  writings  as  a  standard  of  comparison,  and  their 
use  by  experts,  the  defendant  excepted.  It  is  in  relation  to 
the  correctness  of  those  ruling  only  that  any  question  is  raised 
by  the  bill  of  exceptions. 

The  principles  governing  this  case  seem  to  be  pretty  thor- 
oughly settled  by  the  decisions  of  the  courts  in  this  and  other 
states.  The  question  came  before  the  court  in  Massachusetts 
in  Com.  V.  Coe,  115  Mass.,  5(»4,  where  it  was  held  that,  before 
a  writing  can  be  used  as  a  standard  of  comparison  of  hand- 
writing, it  must  be  proved  that  the  specimen  offered  as  a  stand- 
ard is  the  genuine  handwriting  of  the  party  sought  to  be 
charged,  and  that  the  question  of  its  admissibility  as  a  stand- 
ard is  to  be  determined  by  the  judge  presiding  at  the  trial; 
and,  so  far  as  his  decision  is  of  a  question  of  fact  merely,  it  is 
final,  if  there  is  any  proper  evidence  to  support  it;  and  that 
exceptions  to  its  admission  as  a  standard  will  not  be  sustained 
unless  it  clearly  appears  that  there  was  some  erroneous  applica- 
tion of  the  principle  of  law  to  the  facts  of  the  case,  or  that 
the  evidence  was  admitted  without  proper  proof  of  the  qualifi- 
cations requisite  for  its  competency.  The  same  quostion  has 
very  recently  been  belore  the  court  in  Vermont,  in  the  (.use  of 
TioioeUv.  FulU'i'''8  Etitute,  59  Vt.,  HSS,  where  the  court,  review- 
ing the  decisions,  there  says  that  the  question  has  not  before 
been  authoritatively  decided  in  that  state,  and  lays  down  this 
rule:  that  when  a  writing  i';;  disputed,  and  another  is  offered  in 
proof  as  a  standard,  the  court  should  first  find  as  a  fact  that 
the  latter  is  genuine  and  then  sulunit  it  to  the  jury  in  com- 
parison with  that  in  controversy.  The  doctrine,  as  enunciated 
in  Com.  V.  Cae,  Miipva.  which  is  the  same  as  that  so  recently 
settled  in  Vermont,  has  since  been  ro-alllrmcd  in  C<h^tdlo  v. 
Crom//,  1;};]  Mass.,  '.\^>'2.  ami  again  in  (n.sufo  v.  CrowM,  139 
Mass.,  590.  The  rule  in  England  is  now  the  same  as  in  Massa- 
chusetts and  Vermont.     For  centuries,  however,  it  was  other- 


ryr 


166 


AMERICAN  CRIMINAL  REPORTS. 


n 


wise,  and  the  English  courts  denied  the  admissibility  of  such 
testimony  altogether  until  1854,  when  parliament,  by  17  and  18 
Victoria,  chapter  125,  passed  what  is  known  as  "The  Com- 
mon-Law Procedure  Act,"  which  provides  that  "comparison 
of  a  disputed  writing  with  any  writing  proved  to  the  satisfac- 
tion of  the  judge  to  be  genuine  shall  be  permitted  to  be  made 
by  witnesses;  and  such  writings,  and  the  evidence  of  witnesses 
respecting  the  same,  may  be  submitted  to  the  court  and  jury 
as  evidence  of  the  genuineness  or  otherwise  of  the  writing 
in  dispute."  Under  this  rule,  when  any  writing  is  proved  to 
be  genuine  to  the  satisfaction  of  the  presiding  judge,  it  shall 
be  admitted  as  a  standard  of  compar'son.-  By  the  English 
rule,  under  this  statute  the  jury  need  not  consider  or  inquire 
into  the  genuineness  of  the  writing  introduced  for  the  pur- 
pose of  comparison,  as  the  statute  obviates  the  necessity  of 
any  such  inquiry,  and  makes  the  finding  of  the  judge  conclu- 
sive on  that  point.  In  the  light  of  the  authorities,  and  the 
decisions  in  those  jurisdictions  where  the  same  rule  prevails  as 
in  this  state  in  relation  to  proof  of  handwriting  by  comparison, 
we  believe  the  rule  adopted  by  them  upon  the  question  by 
whom  the  genuineness  of  the  standard  is  to  be  determined  to 
be  the  more  correct  and  satisfactory  one.  Notwithstanding 
that,  however,  there  are  courts  of  high  standing,  and  for 
whose  decisions  we  have  groat  respect,  which  have  adopted  a 
different  rule,  and  wiiich  hold  that  thejury  should  ultimately 
pass  upon  the  question.  Such  is  the  rule  in  New  Hampshire, 
where,  as  it  is  well  understood,  the  doctrine  of  proof  of  hand- 
writing by  comparison  has  always  clung  more  tenaciously  to 
the  conservative  English  common-law  rule  than  ever  appeared 
satisfactory  to  the  courts  of  i\[aine,  Massachusetts,  Connecticut, 
Vermont  and  some  of  the  other  states.  In  iState  v.  JlaHtinyH, 
53  N.  II.,  401,  Sargent,  C.  J.,  speaking  of  the  introduction  of 
evidence  to  prove  the  genuineness  of  the  handwriting  offered 
as  a  standard,  says:  "It  is  to  be  received,  and  then  the  jury 
are  to  be  instructed  that  they  are  first  to  find,  upon  all  the 
evidence  bearing  upon  that  point,  the  fact  whether  the  writ- 
ing introduced  for  the  purpose  of  comparison  or  sought  to  be 
used  for  that  purpose  is  genuine.  If  they  find  it  is  not  so, 
then  they  are  to  lay  this  writing,  and  all  the  evidence  based 
upon  it,  entirely  out  of  the  case;  but  if  they  find  it  genuine 


STATE  r.  THOMPSON. 


167 


they  are  to  receive  the  writing,  and  all  the  evidence  founded 
upon  it,  and  may  then  institute  comparisons  themselvt  s  be- 
tween the  paper  thus  used  and  the  one  in  dispute,  and  settle 
the  final  and  main  question  whether  the  signature  in  dispute 
is  oris  not  genuine."  In  Custelo  v.  Crowdl,  139  Mass.,  590,  it 
was  said  that  unless  the  decision  of  the  judge  in  admitting  the 
specimens  as  standards  is  founded  upon  error  of  law  or  upon 
evidence  which  is,  as  nuitter  of  law,  insufficient  to  justify  tlie 
finding,  the  full  court  will  not  revise  it  upon  exceptions.  The 
same  principle  is  laid  down  in  Nunea  v.  Perry,  113  Mass.,  276, 
and  cases  there  cited. 

In  the  case  before  us  the  testimony  in  proof  of  the  genuine- 
ness of  the  standard  came  from  witnesses  who,  if  tliey  are  to 
be  entitled  to  credit,  were  qualified  to  testify'  in  relation  to  the 
genuineness  of  the  defendant's  handwriting.  It  was  in  ac- 
cordance with  the  well-settled  doctrine  of  this  state,  as  laid 
down  in  Woo(hiuin  v.  JJana,  b'2  Me.,  13,  where  the  court,  in  an 
exhaustive  and  carefully  considered  opinion  by  Ilice,  J.,  re- 
viewed the  authorities,  and  stated  as  a  principle  well  estab- 
lished that  the  handwriting  of  a  person  may  be  proved  by  any 
person  who  has  actpiired  a  knowledge  of  it;  as  by  having  seen 
him  write,  from  having  carried  on  a  correspondence  with  him, 
or,  as  was  decided  in  IlammomVa  Case,  2  Me.,  32,  from  an 
acquaintance  gained  from  having  seen  handwriting  acknowl- 
edged or  proved  to  be  his.  Page  v.  TJomans,  14  Me.,  481;  1 
Greenl.  Ev.,  §  577;  Whart.  Ev.,  §§  707,  709.  The  Xcw  Ilamp- 
shire  court,  in  the  case  to  which  we  have  referred,  speaking  of 
what  proof  is  necessary  in  establishing  the  genuineness  of  the 
standard,  say  that  any  competent  evidence  tending  to  prove 
that  the  paper  offered  as  a  standard  of  comparison  is  genuine 
is  to  be  leceived,  whether  the  evidence  be  in  the  nature  of  an 
admission,  or  the  opinion  of  a  witness  who  knows  his  hand- 
writing, or  of  any  other  kind  whatever.  And  in  Vermont,  in 
the  case  of  Powell  v.  Fuller''s  Estate,  already  cited,  it  was  in- 
sisted in  argument  that  the  evidence  was  legally  insufficient 
to  warrant  the  court  in  admitting  the  standard  in  evidence  as 
genuine;  but  the  court  say  that  while  great  care  should  be 
taken  that  the  standard  of  comparison  should  be  genuine,  yet 
any  evidence  pertinent  to  the  issue  is  admissible.  In  the  case 
under  consideration  there  was  the  testimony  of  two  witnesses 


168 


AMERICAN  CRIMINAL  REPORTS. 


who  stated  tlieir  knowledge  of  the  handwriting  of  the  speci- 
mens offered,  and  that  the  handwriting  was  that  of  the  de- 
fendant. It  was  upon  this  evidence  that  the  court  admitted 
the  same  as  a  standard  of  comparison,  and  for  no  other  pur- 
pose, as  stated  by  the  rourt,  and  as  the  exceptions  themselves 
show.  The  decision  of  the  judge  presiding  was  based  upon 
certain  elements  of  fact  as  to  whether  the  specimens  of  writ- 
ing were  sufficiently  proved  to  have  been  written  by  the  de- 
fendant to  allow  them  to  be  introduced  and  submitted  to  the 
jury  as  a  standard.  That  fact  he  determined  by  admitting 
them  in  evidence,  and  allowing  them  to  be  submitted  to  the 
jury  for  that  purpose,  after  the  testimony  of  the  witnesses  for 
the  government  as  to  their  genuineness.  Ills  decision  must  be 
final  and  conclusive,  "  unless  it  is  made  cleaily  to  appear  that  it 
was  based  upon  some  erroneous  view  of  legal  principles,  or  that 
the  ruling  was  not  justified  by  the  state  of  the  evidence  as  pre- 
sented to  the  judge  at  the  time."  Xunca  v.  Pcrrij^  113  Mass., 
270;  Jone^  v.  lioberts,  05  Me.,  270;  Com.  v.  Cue,  115  iMass.,  505. 
The  same  principle  ap|)lies  as  in  determining  whether  or  not  a 
witness  introduced  as  an  exj)ert  is  competent,  by  his  study, 
business,  or  other  qualification,  to  testify.  This  is  a  preliminary 
question  for  the  court.  An  element  of  fact  is  involved  to  bo 
decided  by  the  court,  upon  which  the  capacity  to  testify  de- 
pends. Upon  that  question  the  decision  of  the  judge,  like  all 
decisions  of  a  similar  character,  is  and  must  be,  for  obvious 
reasons,  final  and  conclusive,  unless,  upon  a  report  of  all  the 
evidence  bearing  upon  the  question,  it  is  shown  to  be  without 
foundation,  or  is  based  ujion  some  erroneous  application  of 
legal  principles.  Com.  v.  SlurtliHDd,  117  J\[ass.,  137;  Fiujeiie  v. 
C/tt.^tei'i''dU>,  77  Me.,  33.  The  judge  ))resi(Iing  is  to  hear  and 
consider  this  jjrelirainary  evidence,  and  to  decide  whether  it  is 
credible  or  not;  and  his  decision  as  to  its  credibility,  like  that 
of  a  jury  upon  questions  of  that  kind,  is  conclusive.  Foster  r. 
JUachti/,  7  Mete,  538. 

The  evidence  upon  which  the  decision  of  the  court  was  based 
in  admitting  the  several  writings  for  the  purpose  offered  is 
before  us,  and  forms  a  part  of  this  bill  of  exce[)tions.  This  evi- 
dence, as  in  all  cases  where  the  discretion  and  judgment  of  the 
court  is  brought  into  requisition,  involves  so  much  of  the  ele- 
ment of  fact  that  great  consideration  must  necessarily  bo  given 


STATE  V.  THOMPSON. 


1G9 


to  the  decision  of  the  presiding  judge.  We  do  not  feel  author- 
ized, from  an  examination  of  it,  to  say  tlmt  he  was  not  war- 
ranted in  admitting  the  writing  offered,  and  for  the  purpose 
cliiinied;  nor  do  we  feel  that  there  was  any  such  error  in  the 
decision  to  which  he  arrived,  ii.  admitting  them,  as  to  call  for 
any  revision  by  this  court  upon  exceptions.  Com.  v.  Morrell^ 
91)  Mass.,  542;  O'Connor  'o.  llaliinan,  103  Mass.,  549;  Cluppv. 
lialchy  3  Me..  210. 

Notwithstanding  the  common-law  rule  in  England  and  in 
several  of  the  states  does  not  allow  the  proof  of  handwriting 
by  comparison  of  hands  as  liberally  as  in  Maine,  Massachusetts 
and  Connecticut  {Moore  v.  United  States,  1)1  U.  S.,  273),  yet  it 
has  always  been  the  ])ractice  in  these  states  to  introduce  other 
writings  admitted  or  proved  to  bo  genuine,  whether  relative 
to  the  issue  or  not,  for  the  purpose  of  comparison  of  the  hand- 
writing. The  object  is  to  enable  the  court  and  the  jury,  by  an 
examination  and  comparison  of  the  standard  with  the  writing 
in  controversy,  to  determine  whether  the  latter  is  or  is  not 
genuine.  IlKhunond'n  Case,  2  IMe.,  35 ;  Chandler  v.  Lo  Barron^ 
45  Me.,  53(5;  Woodman  v.  Dana,  52  Me.,  13;  Homer  v.  Wallis, 
11  Mass.,  3(»i);  Mood;/  v.  lioiodl,  17  Pick.,  490;  Eichardson  v. 
Newcomb,  21  Pick.,  315;  L>jo7\  v.  Lyman,  9  Conn.,  55.  "For 
tiiis  purpose,"  observes  the  court  in  Woodman  v.  Dana,  supra, 
"the  specimens  of  handwriting,  not  otherwise  pertinent  to  the 
issue,  but  admitted  or  proved  to  be  genuine,  may  be  introduced 
before  the  court  and  jury  as  a  standard  for  comparison  by 
which  to  test  the  genuineness  of  the  writing  in  controversy; 
and  for  this  pur|)ose  such  standard  specimens  may  be  compared 
by  experts,  in  tiie  presence  of  the  jury,  and  such  experts  are 
permitted  to  express  an  opinion  as  to  the  fact  whether  the  con- 
trovei'ted  paper  be  genuine  or  not,  founded  upon  such  compari- 
son.'' The  exceptions  present  no  objections  in  relation  to  the 
use  of  the  writings,  admitted  by  the  court  as  standards,  by  ex- 
perts, which  are  not  fully  authorized  by  the  foregoing  decision 
of  our  own  court,  and  the  authorities  generall3\  AVhart.  Ev., 
§  719,  and  eases  cited.  No  exceptions  were  taken  to  the  charge 
of  the  presiding  judge;  and,  as  the  only  questions  open  for 
consideration  before  this  court  are  those  presented  in  the  bill 
of  exceptions  (  Wlt/iee  v.  JJrooks,  05  j\[e.,  14),  it  becomes  unnec- 
essary to  enter  upon  the  consideration  of  the  other  questions 


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170 


AMERICAN  CRIMINAL  REPORTS. 


urged  by  the  learned  counsel  for  the  defendant.    Exceptions 
overruled. 

Petees,  C.  J.,  and  Walton, Virgin,  Libbey  and  Haskell,  JJ., 
concurred. 


Ijl.-       5 


IriOTTi.,— Proof  of  handwriting — Comparison,— It  is  not  allowable,  upon 
an  issue  as  to  Imndwiiting,  to  put  in  evidence  papers,  otherwise  irrelevant, 
merely  for  the  purpose  of  enabling  tlie  jury  to  institute  a  comparison  of 
the  writing.  United  States  v.  Jones,  10  Fed.  Rep.,  469.  In  Wisconsin,  in 
order  that  a  writing  whose  authorship  is  in  question  may  be  compared  witli 
other  documents  to  determine  the  handwriting,  the  latter  must  be  clearly 
proved,  and  already  in  the  case,  and  before  the  jury  for  some  other  pur- 
pose. State  V.  Miller,  3  N.  W.  Rep.,  31.  The  snme  rule  obtains  in  Missouri, 
the  court  holding  that  to  admit  papers  not  a  part  of  the  case,  and  not  rele- 
vant as  evidence  to  the  other  issues,  would  lead  to  an  iiideiinite  number  of 
collateral  issues,  and  would  operate  as  a  surprise  upon  the  otiier  party.  Rose 
V.  Bank,  91  Mo.,  399.  In  Minnesota  the  court  holds  that,  when  the  writings 
presented  for  purposes  of  comparison  of  handwriting  are  admitted  to  be 
genuine,  they  may  be  received  in  evidence,  tliough  not  otherwise  relevant. 
Morrison  i\  Porter,  3.'>  ]\Iinn.,  425.  And  in  Massachusetts,  where  it  was 
sought  to  be  proved  that  certain  signatures  weie  those  of  a  defendant,  it 
was  held  competent  to  introduce  in  evidence  for  the  purposes  of  comparison 
a  document  the  signature  to  which  the  defendant  admitted  to  be  his.  Cum. 
V.  Andrews,  143  Mass.,  23,  In  Maryland,  though  the  rule  against  proof  of 
handwriting  by  comparison  of  hands  is  well  settled,  it  is  hehl  competent,  on 
cross-examination  of  a  witness  who  is  familiar  with  a  defendant's  hand- 
writing, to  show  liim,  for  the  purpose  of  refreshing  his  memory,  a  document 
foreign  to  the  case,  but  which  the  defendant  admits  to  have  been  written  by 
him.  National  Bunk  v.  Armstrong,  60  Md.,  113.  See  People  v.  Parker,  64 
Mich.,  000. 

The  Massachusetts  rule,  based  upon  the  English  statute,  should  not  be 
followed  to  its  full  extent.  In  my  judgment  the  genuineness  of  tlie  writ- 
ing wliich  is  to  serve  as  the  standard  of  comparison  ought  to  be  clearly 
proved,  and  when  it  is  not  admitted  to  be  in  the  handwriting  of  the  person 
whose  authorship  is  brought  in  question,  ita  genuineness,  together  with  that 
of  the  expert  testimony  in  respect  to  the  resemblance  thereto  of  the  writing 
in  controversy,  should  be  left  to  the  jury. 


CROWN  CASES  RESERVED. 


171 


■  ii 


Ceown  Cases  Reserved. 
(Reg.  V.  Gibson,  16  Cox,  C.  C,  181.) 

Evidence:  Declaration  made  by  a  by-atander—  When  improper  evidence  it 
alloiped  to  be  considered  by  the  jury,  the  conviction  must  bequanhed. 

(Reporter's  Advance  Sheets.) 

1.  Inadmissible  evidence  vitiates  verdict.— Where  evidence  has  been 

received  in  a  prosecution  for  felony  which  should  not  have  been  ad- 
mitted, the  verdict  of  the  jury  must  be  taken  to  liave  been  founded 
upon  Bucli  evidence  as  well  as  upon  the  evidence  properly  admitted, 
and  if  the  prisoner  is  convicted  the  conviction  is  bad  notwithstanding 
there  was  sufficient  evidence,  apart  from  the  evidence  improperly  re- 
ceived, to  support  the  conviction.^ 

2.  Duty  op  judoe  presiding  over  criminal  court.—  It  is  the  duty  of  a 

jutlge  who  presides  ov  .  a  criminal  court  to  see  that  no  improper  evi- 
dence is  given,  or.  if  such  evidence  is  inadvertently  admitted,  to  see 
tliat  the  verdict  of  the  jury  is  not  founded  upon  any  evidence  but  that 
which  is  legally  admissible. 

3.  Practice  —  Objection  not  taken  until  jury  retire.  — When,  there- 

fore, inadmissible  evidence  is  received,  it  is  immaterial  whether  ob- 
jection be  taken  at  the  time  the  evidence  is  given  or  after  it  has  been 
allowed  to  go  to  the  jury. 

Case  reserved  by  the  quarter  sessions  for  the  West  Derby 
hundred  of  Lancaster  holden  at  Liverpool,  upon  an  indict- 
ment charging  the  prisoner  with  unlawfully  and  maliciously 
wounding  one  Thomas  Simpson. 

The  following  facts  were  proved: 

About  11  P.  M.  on  the  ith  day  of  December,  188G,  the  pris- 
oner and  Charles  Simpson  (a  son  of  the  prosecutor)  had  an 
altercation  opposite  the  Bold  hotel,  Wigan.  Charles  Simpson 
got  hold  of  the  prisoner,  and  said:  "What  do  you  want? 
I'll  soon  shift  you."  The  latter  ran  away  In  a  direction  oppo- 
site to  his  own  house. 

Shortly  afterwards  Charles  Simpson,  Thomas  Simpson  (the 
prosecutor),  Smith  and  two  others  proceeded  from  the  Bold 
hotel  towards  their  own  home  in  Wigan.  Their  road  home 
was  past  the  prisoner's  house. 

After  proceeding  about  sixty-five  yards  from  the  hotel,  and 
when  opposite  the  prisoner's  house,  the  prosecutor  was  struck 
on  the  head  by  a  stone.  The  stone  hit  the  left  side  of  his  head 
from  tlie  direction  of  the  prisoner's  house.    Tlie  blow  caused 

1  See  note. 


m^ 


172 


AMERICAN  CRIMINAL  REPORTS. 


the  prisoner  to  fall  against  the  railings  at  the  side  of  the  road 
furtherest  from  the  prisoner's  house. 

Charles  Simpson,  who  had  just  previously  seen  the  prisoner 
come  up  behind  from  the  direction  of  the  Bold  hotel,  and  pass 
on  the  opposite  side  of  the  road  when  opposite  the  prisoner's 
door,  hcani  Smith,  who  was  walking  with  the  prosecutor,  call 
out,  ''My  arm  is  broke! "  Charles  Simpson  then  saw  the  pris- 
oner go  into  his  own  house.  No  other  person  was  on  that  side 
of  tbe  I'oiid  on  which  the  prisoner's  house  is  situate. 

Charles  Simpson  then  went  to  the  prosecutor,  who  was  on  the 
footpath  against  the  palisade,  on  tbe  opposite  side  of  the  road 
to  the  house  of  the  prisoner,  the  road  being  eleven  or  twelve 
vards  in  width. 

The  prosecutor,  while  walking  on  the  said  footpath,  was 
struck  before  the  ])risoner  went  into  his  house,  and  was  knocked 
against  the  palisade  aforesaid. 

The  prosecutor  stated,  but  not  in  answer  to  any  specific 
question  put  to  him,  "  Immediately  after  I  was  struck  by  the 
stone  a  lady  going  jiast,  pointing  to  the  prisoner's  door,  said 
'the  person  who  threw  the  stone  went  in  there.' " 

Charles  Simpson  went  to  the  front  door  of  the  prisoner's 
house,  called  to  his  brother  to  go  to  the  back,  and  called  for  a  po- 
liceman. Charles  Simpson  broke  the  panel  of  the  door  before 
the  policeman  came.  Admission  was  demanded  by  a  policeman 
and  refused.  The  front  door  was  eventually  broken  open  by 
the  policeman,  when  the  prisoner,  standing  with  his  cap  on, 
and  clothed  as  he  was  at  the  Bold  Arms,  and  his  father,  were 
found  to  be  the  onlv  men  in  the  house,  and  the  father  bein"; 
drunk  and  asleep  on  the  sofa  the  policeman  brought  the  pris- 
oner outside,  when  Charles  Simpson  at  once  said  "  That's  the 
man  that  threw  the  stone." 

Save  as  abov )  there  was  no  direct  evidence  as  to  whether 
the  prisoner  did  or  could  hear  the  said  words  uttered  by  the 
said  woman.  There  was  no  evidence  as  to  who  the  said  woman 
was,  and  she  was  not  called  as  a  witness. 

In  summing  up  the  learned  chairman  directed  the  jury's  at- 
tention, among  other  matters,  to  the  said  evidence  as  to  the 
said  words  uttered  b}'  the  said  woman. 

After  he  had  summed  up  the  case  the  jury  retired  to  con- 
sider their  verdict.    After  the  jury  had  retired  the  prisoner's 


CROWN  CASES  RESERVED. 


173 


counsel  contended :  (1)  That  the  evidence  as  to  the  said  words 
uttered  by  the  woman  was  not  admissible,  inasmuch  as  the  said 
words  were  not  proved  by  the  prosecution  to  have  been  ut- 
tered in  the  presence  or  hearing  of  the  prisoner.  (2)  That  the 
evidence  as  to  the  words  uttered  by  the  woman  should  be  with- 
drawn from  the  consideration  of  the  jury.  (3)  That  the  fact 
tiiat  counsel  did  not  ask  immediately  after  the  evidence  as  to 
the  said  words  uttered  by  the  woman  had  been  given  that  the 
said  evidence  should  be  struck  out,  or  raise  an}'^  objection  to 
the  same  before  the  jury  retired,  could  not  be  allowed  to  prej- 
udice the  prisoner  in  a  criminal  case. 

The  learned  chairman  did  not  accede  to  the  contentions  of 
the  prisoner's  counsel  on  the  ground  that  they  were  made  too 
late,  but  consented  to  state  the  case.  The  case  found  there 
was  ample  evidence  of  identification  against  the  prisoner  to  go 
to  the  jury  other  than  the  evidence  as  to  the  statement  made 
by  the  woman.  The  prisoner  was  found  guilty.  The  ques- 
tion for  the  consideration  of  the  court  was :  Does  the  fact  that 
the  evidence  as  to  the  said  statement  made  by  the  woman  was 
left  to  the  jury  vitiate  the  verdict?  If  so,  the  conviction  was 
to  be  quashed ;  otherwise,  to  stand. 


^i 


'i 


No  ou<.  appeared  in  behalf  of  the  prisoner. 


Lord  Colridoe,  C.  J.  I  am  of  opinion  that  this  conviction 
must  be  quashed.  Evidence  was  received  at  the  trial  of  a 
statement  made  by  a  lady  as  to  where  the  prisoner  had  gone, 
which  tended  to  his  identification;  and  it  is  stated  that  there 
was  no  evidence  as  to  whether  the  prisoner  did  or  could  hear 
such  statement.  The  statement  not  being  made  in  the  hearing 
of  the  prisoner,  was,  therefore,  not  admissible.  The  prisoner 
was  defended  by  counsel  who,  in  the  exercise  of  his  discretion, 
did  not  object  at  the  time  the  evidence  was  given,  and  the  case 
proceeded  and  the  chairman  summed  up  the  case  to  the  jury. 
Now,  the  chairman  very  justly  tells  us  that  he  did  leave  this 
bit  of  chatter,  I  will  call  it,  which  was  not  evidence,  to  the 
jury,  and,  amongst  other  evidence  which  was  properly  re- 
ceived, this  statement  which  ought  not  to  have  been  received 
went  to  the  jury.  The  prisoner's  counsel  objected  that  it 
ought  not  to  have  been  left  to  the  jury,  but  the  learned  chair- 


174 


AMERICAN  CRIMINAL  REPORTS. 


man  refused  to  withdraw  it.  I  express  no  opinion  how  far  the 
technical  withdrawal  of  the  statement  would  have  been  suffi- 
cient; anyhow,  the  learned  chairman  refused  to  withdraw  it, 
and  the  question  is,  Can  the  conviction,  under  such  circum- 
stances, stand?  If  it  had  been  the  verdict  of  a  jury  in  a  civil 
action  prior  to  the  judicature  act  it  certainly  could  not  have 
stood,  because  the  rule  with  regard  to  civil  actions  then  was 
that,  if  any  evidence,  however  small,  which  was  not  admissible 
evidence,  but  which  might  have  aifected  the  verdict,  had  been 
received  and  allowed  to  go  to  the  jury,  the  party  against 
whom  the  verdict  was  given  was  entitled  as  of  right  to  a  new 
trial.  The  court  always  said  that  they  could  not  and  would  not 
weigh  the  evidence  and  consider  what  effect  it  might  or  might 
not  have  had  upon  the  minds  of  the  jury.  Therefore  in  such 
a  case  a  new  trial  would  have  been  granted  as  a  matter  of 
right,  according  to  the  unvaried  practice.  Can  it  be  said  that 
when  the  judicature  act  was  passed  there  was  any  difference 
between  a  civil  and  a  criminal  case  in  that  respect?  I  am 
clearly  of  opinion  that  it  cannot,  and  for  this  reason:  that  the 
consequences  of  the  two  proceedings  would  be  quite  different. 
In  a  civil  case  it  is  true  that  the  error  might  have  been  re- 
dressed by  means  of  a  second  trial;  but  in  a  criminal  case  the 
error  could  not  have  been  redressed.  In  each  case,  therefore, 
the  decision  would  have  been  vitiated  by  the  admission  "  evi- 
dence, part  of  which  was  legal  and  part  illegal.  I  am  of 
opinion,  therefore,  that  in  this  case,  evidence  having  gone  to 
the  jury,  which  evidence  should  not  have  been  left  to  them, 
their  verdict  must  be  taken  to  have  proceeded  upon  improper 
evidence,  and  the  conviction  cannot  therefore  be  sustained. 
That  would  have  been  my  opinion  had  there  been  no  cases  on 
the  matter.  The  cases  brought  to  our  notice,  however,  do  not 
appear  to  me  to  warrant  the  inferences  which  have  been  drawn 
from  them.  The  case  with  regard  to  the  forgery  of  bank-notes 
turns  upon  a  clear  rule  of  law,  and  decides  clearly  what  has 
been  the  invariable  practice,  that  acts  done  by  a  prisoner  of 
the  same  character  as  the  act  charged  in  the  indictment  are  to 
a  certain  extent  admissible  in  evidence  in  order  to  show  guilty 
knowledge;  that  is  to  say,  that  where  an  act  is  a  guilty  act  or 
not  according  to  the  knowledge  of  the  prisoner,  acts  of- his  of 
the  same  sort  tending  to  show  his  knowledge  are  receivable  in 


■Pi 


CROWN  CASES  RESERVED. 


175 


evidence.  The  case  in  Lord  Campbell's  reports  turns  entirely 
upon  the  reception  of  evidence  to  show  guilty  knowledr^e,  and 
has  nothing  to  do  with  this  case.  Nor  has  Tinklei^s  Case 
anything  to  do  with  this  case,  because  there  the  question  was 
whetht!  the  declarations  made  by  a  woman  before  her  death 
were  receivable  in  evidence,  and  two  objections  to  its  reception 
were  made;  the  first,  because  she  \\q.% particepa  criminis  in  her 
own  death,  and  therefore  her  evidence  required  corroboration ; 
and  the  second,  because  the  declarations  were  not  n)ade  under 
the  well-established  rule  which  required  that  all  hope  of  recov- 
ery should  have  gone  from  her  mind  when  they  were  made. 
Now,  these  objections  were  overruled  on  the  grounds:  the  first, 
because  there  was  another  count  in  the  indictment  in  which  the 
woman  was  not  charged  as particeps  cnminis,  and  also  because 
there  was  abundant  evidence  of  corroboration  if  it  were  neces- 
sary; and  the  second  object'on,  because  the  time  at  which 
the  state  of  the  mind  of  the  deceased  was  to  be  considered  was 
the  time  when  she  made  the  declarations,  and  the  fact  that 
between  that  time  and  her  death  her  hopes  revived  did  not 
affect  the  rule  admitting  her  declaratiorfs  as  dying  declara- 
tions. Therefore  the  only  two  cases  cited  before  us  are  not 
cases  which  have  any  bearing  upon  the  present  case.  In  crim- 
inal cases  a  judge  must  talce  care  that  evidence  is  not  admitted 
Avhich  is  inadmissible,  and  that  the  verdict  of  the  jury  is  not 
founded  upon  any  evidence  but  that  which  is  by  law  allowed; 
and  evidence  having  been  improperly  left  to  the  jury  in  the 
present  case,  the  conviction  must,  in  my  opinion,  bo  quashed. 

Pollock,  B.  I  have  come  to  the  same  conclusion,  and  am 
of  opinion  that  the  question  is  of  some  importance,  because  it 
might  arise  also  where  a  judge  had  allowed  documentary  evi- 
dence to  be  put  in  which  should  not  have  been  put  in.  It  is 
clear  to  my  mind  that  if,  on  a  prosecution  for  bigamy,  the 
judge  allowed  an  informal  certificate  of  the  marriage  to  go  to 
the  jury  with  the  evidence  of  any  person  who  was  present  on 
the  occasion,  a  conviction  under  such  circumstances  could  not 
stand,  and  it  could  not  be  sufficient  after  that  to  say  there  was 
ample  evidence  from  bystanders  that  the  marriage  took  place. 
If  it  were  so,  the  consequences  would  be  to  put  on  this  court 
the  functions  of  the  jury.  I  am  therefore  of  opinion  that  this 
conviction  should  be  quashed. 


'f|;i 


if 


s'm' 


•■.:;:' 7  M 


176 


AMERICAN  CRIMINAL  REPORTS. 


Stephen,  J.  I  am  of  the  same  opinion.  There  are  two 
cases  which  have  been  cited,  the  first  of  which  was  Hex  v. 
Ball,  iiU  supra,  in  1807.  Upon  that  case  there  are  two  obser- 
vations which  arise:  the  first,  that  the  last  paragraph  of  the 
report  on  page  133  of  Ilussel  and  Eyan's  Crown  Cases  is  ob- 
viously not  a  part  of  the  judgment  of  Chambre,  J.,  at  all,  but 
merely  an  observation  made  by  the  reporter  of  the  case;  sec- 
ondly, that  observation  appears  to  be  entirely  unsupported  by 
anv  authority  at  all,  and  appears  to  have  arisen  from  a  misun- 
derstanding of  Tlnlder's  Caxe.  The  note  as  to  thai,  case  says 
that,  "in  Margaret  Tinlier's  Case  all  the  judges  tljought  the 
evidence  of  a  witness  of  the  name  of  Parsons  ought  not,  in 
strictness,  to  have  been  received;  but  as  the  evidence  was 
ample  without  it,  the  judges  did  not  think  themselves  bound 
to  stop  the  course  of  justice."  Now,  from  the  statement  of 
the  facts  in  1  East,  P.  C,  it  appears  that  the  judges  thought 
that  the  evidence  of  the  statements  made  by  the  deceased 
woman  Parkinson,  not  Parsons,  ought  to  have  been  received; 
and  it  was  not  because  they  thought  the  evidence  was  ample 
withgut  the  evidence  then  in  question  that  they  withheld  the 
conviction.  They  said  nothing  about  the  evidence  being  ample 
without  it,  for  they  all  thought  that  the  statements  of  the  de- 
ceased woman  had  been  properly  received,  the  only  difference 
being  that  some  thought  the  statements  required  corrobora- 
tion, while  others  thought  they  did  not.  The  note,  therefore, 
is  wholly  incorrect,  and  conveys  an  entirely  wrong  idea  of 
what  the  law  is.  In  my  opinion,  this  evidence  being  inadmis- 
sible, and  having  been  received,  renders  the  conviction  bad, 
and  it  must  be  quashed. 

Matwew,  J.  I  am  of  the  same  opinion.  "We  have  to  lay 
down  a  rule  which  shall  be  applicable  whether  a  prisoner  is 
defended  by  counsel  or  not.  In  either  case  it  is  the  duty  of 
the  judge  to  lay  down  the  law,  and,  above  all,  to  warn  the  jury 
against  acting  on  evidence  which  they  ought  not  to  act  on. 
Here  the  judge  directed  them  to  act  on  evidence  which  was 
not  evidence,  and  I  am  therefore  of  the  opinion  that  the  ver- 
dict ought  not  to  stand. 

Wills,  J.  I  am  of  the  same  opinion;  and  I  do  not  tliink 
any  fault  can  be  found  with  the  prisoner's  counsel  for  assum- 


CROWN  CASES  RESERVED. 


177 


Ing  that  a  propci-  direction  would  be  given  to  the  jury.  How- 
ever, that  is  immaterial,  for,  if  a  mistake  has  been  made  by 
counsel,  it  would  not  relieve  the  judge  from  his  duty  of  seeing 
that  the  jury  did  not  act  on  improper  evidence.  It  is  some- 
times said,  and  very  erroneously,  that  the  judge  is  bound  to 
be  counsel  for  the  prisoner,  but,  although  he  is  not  to  act  as 
counsel,  he  must  at  least  take  care  that  the  prisoner  is  not  con- 
victed on  any  evidence  but  that  which  is  legal.  The  convic- 
tion must,  in  ray  opinion,  be  quashed. 

Conviction  quashed. 

Note. —  Proof  of  declaration  of  bystander  is  not  admissible  unless  part 
of  the  rea  gestce.  In  Felder  v.  State,  23  Tex.  Ct.  App.,  477,  tlie  court  says: 
Upon  the  trial  below  the  state,  over  objection  thereto  by  appellant,  was  per- 
niitted  to  introduce  the  following  testimony:  "When  you  reached  the 
place  where  the  shooting  occurred  did  any  one  soy  who  had  done  the  shoot- 
ing? Yes;  some  one  in  the  crowd  i>ointed  out  Dr.  Felder,  and  said:  '  There 
is  the  man  who  did  the  shooting.'  I  had  just  met  Dr.  Felder  walking  lei- 
surely down  the  street."  Other  testimony  shows  that  the  point  at  which  ap- 
pellant was  met  '*  was  almut  the  corner  of  Koppert's  book-store,"  a  building 
situated  two  doors  from  that  in  which  the  liomicide  was  committed,  and  at 
tiie  front  of  which  latter  the  exclamation  was  made.  To  the  admission  of 
this  testimony  a  bill  of  exceptions  was  reserved,  the  exception  basing  itself 
upon  the  proposition  tliat  the  evidence  elicited  was  hearsay  and  not  res 
gestce, 

"  The  question  is,"  says  Mr.  Wliurton,  "  is  the  evidence  offered  that  of 
the  event  speaking  through  participants,  or  that  of  observers  speaking 
about  the  event?  In  the  first  case,  what  was  thus  said  can  be  introduced 
without  calling  those  who  said  it.  In  the  second  case  they  must  be  called." 
Whart.  Crim.  Ev.,  ^  2(J3.  To  the  same  effect  is  the  following  from  Mr. 
Bishop's  Treatise  on  Criminal  Procedure:  "  But,  while  the  declarations  and 
outcries  of  persons  neitiier  on  trial,  nor  injured  by  the  defendant's  acts, 
may  bo  admissible,  to  be  so  such  persons  must  be  otherwise  connected  with 
the  transaction  than  as  mere  looktjrs-on,  or  the  ilefendant  must  have  been 
listening,  and  perhaps  under  circumstances  requiring  from  him  some  re- 
sponse." 1  Bish.  Crim.  Proc,  ^  1087.  Hearsay  testimony,  as  a  rule,  is 
admissible  to  prove  no  fact  which  is  in  its  nature  susceptible  of  proof  by 
witnesses  testifying  of  their  own  knowledge,  Bradshaw  v.  Com.,  10  Bush, 
570;  JJolt  V.  State,  0  Tex.  App.,  572;  Mcuhh  v.  State,  10  Tex.  App.,  10; 
SheltoH  V.  State,  11  Tex.  App.,  30;  Roscoe,  Crim.  Ev.,  23,  23. 

"The  circumstances  of  the  Kentucky  case  of  Bradshaw  v.  Com.,  siqwa, 
perhaps  present  strong  reasons  for  admitting  the  declarations  of  by-standers 
not  connected  with  the  transaction  as  can  easily  be  conceived.  In  that  case 
the  theory  of  the  prosecution  was  that  defenilant  had  shot  deceased  with  a 
pistol  while  on  the  platform  of  a  railway  cc)acli,  and  thrown  the  body  there- 
from, the  train  at  that  time  being  in  motion.  In  supj)ort  of  this  theory 
persons  inside  the  coach,  and  immediately  in  rear  of  the  platform,  were 
Vol,  VII  — 13 


■mi- 


m 


178 


AMERICAN  CRIMINAL  REPORTS. 


.   '■'■  ■ 

■■  ;'i>S■'^ 

'■.'■■!)  .  ■ 

permitted  to  testify  to  the  following  exclamations  made  by  persons  stand- 
ing  on  the  platform,  and  in  the  immediate  presence  of  tlie  actors:  '  Brad- 
shaw  has  shot  himt'  'Bradshaw  has  pushed  him  oflf!'  '  Bradslmw  hits 
killed  him!'  It  will  be  noted  that  these  exclamations  were  made  upon  the 
instant,  nnd  presumably  in  the  hearing  of  the  accused.  There  was  in  tliein 
certainly  enough  of  spontaneity  to  make  them  of  the  res  gestte;  but  tliev 
were  held  inadmissible  u[(on  the  single  ground  that  the  persons  makin;: 
them  were  in  no  way  connected  with  the  main  fact. 

"Cases  may  and  do  arise  in  which  the  exclamations  of  by -standers,  un- 
connected with  the  transaction,  are  at'missible,  of  which  the  following 
furnishes  an  illustration:  A.  and  B.  are  engaged  in  a  combat.  C,  a  by- 
stander, cries  out:  "  B.  is  trying  to  cut  A.  with  a  knife! "  In  the  further 
progress  of  the  difficulty  B.  is  injured  at  the  hands  of  A.  This  exclamation 
is  admissible  for  the  obvious  reason  that  it  illustrates  A.'s  intont;  it  being 
presumed  that  the  apprehension  of  danjjer  thereby  created  ii  fluenced  his 
action;  and  this  whether  the  information  was  in  pomt  of  fact  true  or 
false." 

In  Briggs  v.  The  Com,,  82  Va.,  504,  among  the  errors  assigned  was  as  to 
the  court  admitting  the  exclamation,  "  Well,  you  have  killed  him!"  When 
the  deceased  was  killed  two  persons  ran  rapidly  avay  in  the  same  direction ; 
one  said  to  the  other  as  they  both  ran  by  a  by-Plander,  in  a  jerky  voice,  the 
words  above  quoted.  "  Upon  every  princi[)l<',"  sjiys  tlie  court,  "  and  accord- 
ing to  all  the  text-writers,  this  was  part  of  the  res  gcnta',—  that  is,  *  facts 
which  constitute  the  res  gestte.  niu.st  be  such  as  are  connected  with  the  very 
transaction  or  fact  under  consideration  as-  to  constitute  part  of  it.'  Haijnes' 
Case,  28  Gratt.,  940.  It  was  a  circumstiiiue  which  was  closely  connected 
with  the  crime;  words  said  between  the  participants  under  the  inunediate 
spur  of  the  transaction.  It  is  clearly  admissil)le."  In  this  case  there 
seems  no  question  as  to  the  identity  of  tiie  parties,  and  as  the  words  were 
addressed  to  the  defendant  they  were  properly  admitted  in  evidence. 

Duty  of  court  to  review  errors  ichen  no  excejitious  are  taken. —  Strictly 
speaking,  it  is  not  the  duty  of  the  court  to  review  proceedings  of  a  lower 
court,  except  on  such  points  of  law  or  evidence  as  are  excepted  to;  yet  no 
court  would  be  justified  in  refusing  to  consider  errors  of  a  fatal  nature  com- 
mitted on  the  trial  which  were  not  duly  excepted  to  as  the  result  of  accident 
or  mistake.  Indeed  it  not  unfrequently  happens  that  lawyers  employed  by 
the  accused,  or  who  are  assigned  to  defend  him  by  the  court,  are  not  suffi- 
ciently fatniliiir  with  the  practice  or  rules  of  law  to  know  when  to  inter- 
pose an  objection  and  preserve  an  exception,  and  in  such  cases  courts,  in 
furtherance  of  justice,  should  sacrifice  forms  to  substance. 

In  Potter  V.  State,  85  Tenn.,  88,  the  defendant  was  convicted  of  murder 
and  sentenced  to  the  penitentiary  for  life.  The  supreme  court  held  that 
judgment  should  be  reversed  and  a  new  trial  granted  on  account  of  the 
failure  of  the  judge  to  instruct  the  jury  that  they  might  consider  threats 
made  by  the  deceased,  some  of  which  were  communicated  to  the  defend- 
ant, although  no  request  for  such  instruction  was  made. 

In  Johnson  v.  Com.,  115  Pa.  St.,  309,  the  prosecuting  attorney  called  upon 
the  prisoner  to  stand  up  and  repeat  some  words,  so  as  to  assist  a  witness 
upon  the  stand  in  forming  an  opinion  as  to  his  identity,  and  it  was  con- 


COMMONWEALTH  v.  WALLACE. 


170 


tended  on  appeal  that  this  was  error;  but  the  court  says  that  "  the  conten- 
tion may  be  dismisaed,  with  the  remark  ihat  no  objection  was  made  or  ex- 
ception taken  thereto  in  the  court  below.  So  far  ns  the  record  shows,  the 
request  was  promptly  acceded  to,  without  any  objection  either  by  the  pris- 
oner himself  or  his  counsel.  Having  thus  waived  the  right  of  objection, 
and  taken  the  chances  of  a  favorable  result,  it  would  be  contrary  to  every 
rule  of  jjractice  to  permit  him  to  take  advantage  of  what  was  done,  even  if 
it  was  erroneous. 

"  Our  right  to  review  proceedings  of  the  court  below  in  cases  like  this  is 
limited  to  such  rulings,  on  points  of  law  or  evidence,  as  are  excepted  to  at 
tlie  time  and  made  matter  of  record.  Fife  r.  Com.,  39  Pa.  St.,  429;  Hop- 
kins V.  Com.,  ^0  Pa.  St.,  9.  It  does  not  appear  tiiat  the  silence  of  the  rec- 
ord as  to  any  objection  or  exception  to  the  action  complained  of  is  the  re- 
sult of  accident  or  mere  oversight.  If  such  had  been  the  case  the  court,  on 
application,  would  have  so  corrected  the  record  as  to  show  what  actually 
occurred  on  the  trial. " 


CoMMONWK.VI.TFI    V.    WaLLACE. 

(114  Pa.,  405.) 

False   pretense  and  promise:  Error  by  state  —  Practice  —  Indictment. 

1.  Exceptions  hy  state  reviewed. —  For  error  in  quashing  an  indict- 

ment, arresting  judgment  after  verdict  of  guilty,  and  tlio  like,  the 
commonwealth  may  remove  the  record  from  the  court  below  to  the 
supreme  court  for  review  without  special  allowance  of  the  proper 
writ. 

2.  QuASHiNO  indictment  —  Writ  op  error  —  Certiorari. —  A  writ  of 

error  is  the  proper  writ  to  bring  before  the  supreme  court  for  review 
alleged  error  in  quashing  a  bill  of  indictment ;  but,  if  a  writ  of  certio- 
rari 1)0  taken  and  the  case  heard  on  its  merits,  the  writ  will  not  be 
quiishcd  for  that  reason. 

3.  False  prp:tenses  —  Indictment  —  What  constitutes.— A  bill  of  in- 

dictment charged  that  defendant  did  pretend  "  that  the  assets  of  said 
People's  Savings  Bank  were  largely  in  excess  of  its  debts  and  liabilities, 
and  that  said  bank  was  perfectly  solvent  and  able  to  pay  its  debts  and 
liabilities,"  followed  by  the  averment  that  "  in  truth  and  in  fact  the 
assets,  at  the  time  of  making  the  representation  aforesaid,  were  not  in 
excess  of  its  debts  and  liabilities,  and  said  Peoi»]e's  Savings  Bank  was 
not  solvent  and  able  to  pay  all  its  debts  and  liabilities."  Held,  that 
this  was  a  false  pretense  within  the  statute. 

4.  False  pretense  and  promise  made  tooether.— When  a  pretense  and 

promise  are  made  together,  and  both  operate  in  the  inducement,  the 
case  is  within  the  statute,  if  the  pretense  of  a  false  existing  or  past  fact 
be  sufficient.' 


I  See  note. 


180 


AMERICAN  CIllMINAL  REPORTS. 


Certiorari  to  Quarter  Sessions,  Lawrence  County. 

Indictment  by  the  commonwealth  of  Tennsylvania  against 
Daniel  II.  Wallace  for  obtaining  money  by  false  pretense. 
The  facts  sufficiently  appear  in  the  opinion.  The  quarter 
sessions,  on  motion,  quashed  the  indictment,  whereupon  tiie 
commonwealth  took  this  writ. 


S.  L.  J/cC'me/!e/}, district  attorney,  Charlen  McCandless.  Ji.A. 
Wmternits  and  TreaihccU  tb  Jar.ieson,  for  plaintiff  in  error. 
S.  W.  Dana  and  Charles  Grljftth^  for  defendant  in  error. 

Trunkky,  J.  It  is  contended  by  the  defendant  that  the 
commonwealth  is  not  entitled  to  a  writ  of  error  or  certiorari 
in  this  cnse.  Reference  is  made  to  Com.  v.  Moore,  99  Pa.  St., 
570;  i  Am.  Cr.  R,  230,  where  one  of  the  judges  was  of  opin- 
ion that  the  writ  should  be  quashed.  The  court,  however, 
sustained  the  writ  and  affirmed  the  judgment. 

Tiic  I'liminal  procedure  act  of  18«iO,  section  .S3,  provides  that 
any  person  indicted  may  remove  the  proceedings  tlierein  into 
the  supreme  court,  provided  that  said  court,  or  one  of  the 
judges  thereof  or  the  attorney-general,  allows  the  writ  upon 
sufficient  cause.  Other  sections  provide  for  bills  of  exceptions 
by  defendants,  and  allowance  of  writs  of  error  on  their  appli- 
cation, in  cases  of  felonious  homicide.  The  act  of  IMay  19, 
1S74,  provides  thaton  the  trial  of  all  criminal  cases  the  defend- 
ant may  except  to  any  decision  of  the  court  in  the  same  man- 
ner as  is  provided  and  i)racticed  in  civil  cases;  and  in  case  of 
nuisance  or  forcible  entry  or  detainer  the  commonwealth  also 
may  exce])t  to  any  decision  in  like  n;anner;  and  in  cases  ex- 
clusively triable  in  the  courts  of  oyer  and  terminer  and  general 
jail  delivery  "the  accused,  after  conviction  and  sentence,  may 
remove  the  indictment,  record  and  all  proceedings  into  the 
supremo  court;"  and  in  all  other  cases  "writs  of  error  and 
certiorari  may  be  issued  to  all  criminal  courts  when  especially 
allowed  by  the  supreme  court  or  any  judge  thereof." 

A  view  of  the  statute  reveals  the  purpose  to  secure  to  de- 
fendants or  accused  persons  the  right  of  removal  and  review, — 
not  to  Lake  away  an}'  right  from  the  commonwealth.  For 
reasons  patent  to  every  one  familiar  with  the  character  of 
cases  of  nuisance,  forcible  entry  and  detainer,  the  common- 


COMMONWEALTH  v.  WALLACE. 


181 


wealth,  as  well  as  the  defendant,  is  clothed  with  right  to  except 
to  decisions  of  the  trial  court ;  but  that  grant  takes  away  no 
power  as  respects  other  cases.  Since  the  act  of  18G(»  it  has 
been  decided  that  the  powers  of  this  court  are  competent  to 
the  review  of  any  judicial  record  when  no  statutory  restraints 
have  been  imposed,  and  that  the  district  attorney  may  take  out 
ji  writ  of  error  or  certlornvl  without  special  allowance,  t'uia.  v. 
Capp,  48  Pa.  St.,  53.  In  the  conduct  of  criminal  cases  the 
district  attorney  in  each  county  is  vested  with  all  the  ix  wers 
which  formerly  iMilmiged  to  the  deputy  attorney-general.  Gil- 
roy  V.  Com.,  105  Pa.  St.,  484.  To  erroneous  decisions  made 
in  the  trial  which  may  cause  the  acquittal  of  the  accused, 
except  in  the  three  misdemeanors  already  mentioned,  the  com- 
monwealth cannot  except,  and  such  decisions  cannot  be  re- 
viewed. JJut  for  error  in  quasliing  an  indictment,  arresting 
judgment  after  verdict  of  guilt}',  and  the  like,  the  common- 
wealth may  remove  tlie  record  for  review  without  special 
allowance  of  the  proper  writ. 

Tlje  defendant  further  contends  that  if  any  writ  can  be 
taken  it  is  a  writ  of  error,  and  not  a  certiorari.  It  cannot  be 
gainsaid  that  it  is  bad  practice  to  take  a  certiorari  in  a  case 
like  the  present,  although  in  fact  it  brings  up  the  record,  as 
would  a  writ  of  error.  It  is  conceded  that  either  writ  has 
been  used  —  sometimes  one  and  sometimes  the  other  —  for  the 
same  purpose.  This  court,  where  the  cause  has  been  prepared 
and  heard  on  its  merits,  has  considered  it  as  if  brought  up  by 
writ  of  error,  as  in  the  late  case  of  Com.  v.  Moore,  s^tpra. 
Were  this  writ  quashed,  the  commonwealth  could  immediately 
take  out  the  proj)er  writ;  and,  as  the  case  has  been  fully 
heard  on  the  merits,  it  seems  better  that  the  real  question  be 
determined. 

The  indictment  charges  that  the  defendant  did  pretend 
"  that  the  assets  of  said  People's  Savings  Bank  were  largely 
in  excess  of  its  debts  and  liabilities,  and  that  said  bank  was 
perfectly  solvent,  and  able  to  pay  all  its  debts  and  liabilities." 
Was  this  a  pretense  within  the  statute  ?  Persons  in  the  trans- 
action of  business  understand  that  a  solvent  man  is  able  to  pay 
his  debts.  The  phrase  respecting  the  large  excess  of  assets 
over  liabilities,  and  the  statement  that  the  bank  was  able  to 
pay  all  its  debts,  emphasized  the  representation  that  it  was 


182 


AMERICAN  CRIMINAL  REPORTS. 


';;v*^  ■ 


?-■'-:■  i 


solvent.  It  may  be  that  when  a  man  buys  goods  on  credit,  or 
borrows  mone}',  by  such  act  he  represents  himself  to  the  cred- 
itor as  solvent;  but  it  is  not  so  understood  by  persons  in  busi- 
ness. If  the  debtor  says  nothing  as  to  his  solvency  or  property, 
the  creditor  does  not  understand  that  lie  represents  anything. 
A  note  or  other  obligation  for  the  payment  of  money,  by 
usage,  does  not  mean  a  pretense  of  ability  to  pay ;  but  tiie 
giving  of  a  bank  check,  by  usage,  is  a  pretense  that  there  is 
money  in  the  bank  subject  to  the  check.  Acts  may  amount 
to  a  pretense,  as  well  as  words. 

In  State  v.  Toinlin,  5  Dutch.  (K  J.),  15,  the  pretense  by  the 
defendant  to  the  prosecutor  was  that  a  third  person  was  in- 
solvent, largely  indebted,  possessed  of  small  means,  and  unable 
to  pay  his  debts  in  full.  It  was  held  that  the  pretense  was 
matter  of  fact,  not  mere  o])inion,  and  the  indictment  was  sus- 
tained. The  word  ''insolvent  "  signified  that  the  third  person 
was  unable  to  pay,  but  the  added  phrases  gave  emphasis  to 
the  representation.  It  may  be  more  difficult  to  establish  to 
the  satisfaction  of  a  jury  that  a  false  representation  of  solv- 
ency, without  more,  was  made  with  fraudulent  intent,  or  that 
it  induced  the  prosecutor  to  part  '-i^ith  his  property,  than  it 
would  be  were  such  representation  accompanied  by  a  detailed 
false  statement  of  the  property  and  liabilities  of  the  person  rep- 
resented as  solvent.  This  being  so,  it  is  not  for  the  court  to 
say  that  a  positive  statement  of  the  fact  of  solvency  is  only  the 
expression  of  an  opinion. 

The  indictment  avers  that  "in  truth  and  in  fact  the  assets, 
at  the  time  of  making  the  representation  aforesaid,  were  not 
in  excess  of  its  debts  and  liabilities,  and  said  People's  Savings 
Bank  was  not  solvent  and  able  to  pay  all  its  debts  and  lia- 
bilities." That  seems  a  sufficient  negative  of  the  pretended 
facts. 

The  remaining  objection  to  the  indictment  is,  as  alleged  in 
the  reasons  for  quashing  it,  that  it  charges  that  the  money 
was  obtained  by  both  a  pretense  and  a  promise;  and,  so  far 
as  the  court  can  know,  the  promise  alone  may  have  induced 
the  prosecutor  to  part  with  his  money.  The  defendant  con- 
cedes that  if  the  indictment  had  charged  the  pretense  alone, 
admitting  its  sufficiency,  the  proof  would  have  been  sufficient, 
even  though  it  showed  that  the  deposit  was  partly  induced  by 


COMMONWEALTH  v.  WALLACE. 


183 


the  promise.  Nor  is  it  claimed  tha*,  should  the  defendant  be 
convicted  on  this  indictment,  the  court  would  arrest  the  judg- 
ment because  the  promise  is  set  out  therein.  It  is  settled  that 
when  a  pretense  and  promise  are  made  together,  and  both 
operate  in  the  inducement,  the  case  is  within  the  statute  if  the 
pretense  of  a  false  existing  or  past  fact  be  sufficient.  Indeed, 
when  they  are  blended  it  may  be  difficult  to  prove  one  with- 
out tlie  other;  and  equalh'  difficult  to  fairly  state  the  pretense 
witiiout  the  accompanying-  promise  in  the  indictment.  Both 
may  be  proved,  and  the  jury  determine  whether  the  prosecutor 
would  have  parted  with  his  property  without  the  pretense.  If 
the  grand  jury  act  intelligently  they  would  no  more  likely  find 
a  true  bill  on  the  promise  alone  than  the  petit  jury  would  a 
verdict  of  guilty.  They  hear  the  testimony  of  the  blended 
pretense  and  promise;  and  that  both  are  in  the  indictment  can 
work  no  prejudice  to  the  defendant. 

In  'State  r.  Doire.  27  Iowa,  '273,  the  defendant  demurred  to 
the  indictment,  and  the  demurrer  was  overruled;  the  court 
remarking:  '*  The  fact  that  a  promise  is  combined  with  a  false 
pretense  does  not  take  away  the  criminal  character  of  the 
act."  That  case  is  meagerly  reported,  yet  it  seems  the  indict- 
ment, setting  forth  pretense  and  promise,  was  sustained.  The 
case  of  li"(j.  V.  West,  8  Cox,  Crim.  Cas.,  12,  is  when  the  pre- 
tense was  blended  with  a  promise,  and  it  appears  both  were 
alleged  in  the  indictment,  but  no  question  was  raised  as  to  the 
practice. 

We  are  not  convinced  that  the  indictment  is  fatally  defect- 
ive, and  therefore  are  bound  to  say  that  the  order  quashing  it 
s  erroneous.     Com.  v.  GImrch,  1  Pa.  St..  105. 

Judgment  reversed  and  procedendo  awarded.  Record  re- 
luitted. 

Note.— See  Com.  v.  Moore,  4  Am.  Cr.  R.,  230,  and  note. 


I 


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184  AMERICAN  CRIMINAL  REPORTS. 


State  v.  MoCuesney. 

(90  Mo.,  120.) 

False  pretense'^:  Voluntary  association  —  Names  of  persons  composing — 
Trick  or  device  must  he  set  forth. 

1.  Persons  cheated— Voluntary  association.— An  indictment  under 
Revised  Statutes  of  Missouri  of  1879,  section  1501,  for  cheating,  which 
sets  out  that  the  defendant  attempted  to  client  certain  "  persons,  firms 
and  corporations,  composing  a  voluntary  association  known  as  the 
'Brewers'  Association  of  St.  Louis  and  East  St.  Louis,'  a  more  particu- 
lar description  of  which  said  persons,  firms  and  corporations,  and  of 
said  association,  is  to  the  jurorn  unknown."  etc.,  is  bad,  because  it  does 
not  sufficiently  set  forth  the  names  of  the  persons  who  were  to  be 
cheated. 

2.  Description  of  the  trick  or  device. —  An  indictment  for  attempted 
cheating,  which  charges  that  the  accused,  at  a  certain  time  and  place, 
"did,  with  intent,"  etc.,  "to  feloniously  cheat  and  defraud,  unlaw- 
fully," etc.,  "  attempt  to  obtain  from  certain  persons,"  etc.,  "  by  means 
and  by  use  of  a  certain  trick  and  deception,  and  by  means  and  by  use 
of  certain  false  and  fraudulent  representations,"  etc.,  "  a  large  sum  of 
money,"  etc.,  is  bad,  because  it  does  not  sufficiently  set  forth  the 
trick  or  device  of  which  the  defendant  made  use. 

Appeal  from  St.  Louis  Court  of  Appeals. 

Indictment  for  attempted  cheating. 

Section  1561,  Revised  Statutes  of  Missouri  of  1S79,  under 
which  the  defendant  was  prosecuted,  after  defining  tlie  offense, 
provides  that "  in  every  indictment  under  this  section  it  shall 
be  deemed  and  held  a  sufficient  description  of  the  offense  to 
charge  that  the  accused  did,  on ,  unlawfully  and  feloni- 
ously obtain,  or  attempt  to  obtain  (as  the  case  may  bo),  from 
A.  B.  (here  insert  the  name  of  the  person  defrauded )  his  or  her 
money  or  property,  by  means  and  use  of  a  cheat  or  fraud  or 
trick  or  deception,  or  false  or  fraudulent  representation,  or  false 
pretense  or  confidence  game,  or  false  and  bogus  check  or  instru- 
ment or  coin  or  metal,  as  the  case  may  be,  contrary  to  the 
form  of  the  statute,"  etc. 

Thoroxighmaii  ib  Valliant,  for  appellant. 
The  Attorney- General,  Joseph  G.  Lodge,  William.  II.  Blisa 
and  Henry  T.  Kent,  for  the  state. 

Kourox,  J.  The  defendant  was  tried  in  the  criminal  court 
of  the  city  of  St.  Louis  on  an  indictment  founded  on  section 


STATE  V,  McCHESNEY. 


185 


15G1,  Revised  Statutes,  and  was  convicted.  From  the  judg- 
ment of  conviction  he  appealed  to  the  St.  Louis  court  of  ap- 
peals, Avliere  it  was  affirmed,  and  from  that  judgment  he  ap- 
peals to  this  court. 

The  first  question  which  the  record  presents  for  our  deter- 
mination relates  to  the  sufficiency  of  the  indictment,  the  suf- 
ficiency of  which  was  questioned  in  the  trial  court  by  a 
demurrer  to  it,  which  was  overruled.  Omitting  the  formal 
parts  of  the  indictment  it  is  as  follows:  It  charges  that 
defendant,  on  the  13th  September,  18S3,  in  the  city  of  St. 
Louis,  "did,  with  intent  then  and  there  to  feloniously  cheat 
and  defraud,  unlawfully  and  feloniously  attempt  to  obtain  from 
certain  persons,  firms  and  corporations,  then  and  there  com- 
posing a  voluntary  ass(?ciation  known  as  the  '  Brewers'  Associ- 
ation of  St.  Louis  and  East  St.  Louis,'  a  more  particular 
description  of  which  said  persons,  firms  and  corporations,  and 
of  said  association,  is  to  the  jurors  aforesaid  unknown,  by 
means  and  by  use  of  a  certain  trick  and  deceotion,  and  by  means 
and  by  use  of  certain  false  and  fraudulent  representations, 
statements  and  pretenses,  a  large  sum  of  money,  that  is  to 
say,  the  sum  of  ^2,000,  then  and  there  the  money  and  property 
of  saiil  association,  contrary,"  etc.  Testing  this  indictment  by 
the  rules  of  the  common  law,  which  prescribe  the  averments 
necessary  to  be  made  in  an  indictment,  it  would  unquestion- 
ably be  insufficient.  State  v.  Eoers,  49  Mo.,  542;  State  v.  lioss, 
25  Mo.,  420;  State  v.  Helm,  0  Mo.,  203. 

While  this  seems  to  bo  conceded  by  counsel,  they  neverthe- 
less claim  the  indictment  to  be  good  and  sufficient  by  reason 
of  section  1501,  Revised  Statutes,  which  is  as  follows: 

'"Sec.  1501.  Every  person  who,  with  intent  to  cheat  and  de- 
fraud, shall  obtain,  or  attempt  to  obtain,  from  any  other  person 
or  persons,  any  money,  property,  or  other  valuable  thing 
whatever,  by  means  or  by  use  of  any  trick  or  deception,  or 
false  and  fraudulent  representation  or  statement  or  pretense, 
or  by  any  other  means  or  instrument  or  device,  commonly 
called  the '  confidence  game,'  or  by  means  or  use  of  any  false 
or  bogus  check,  or  by  any  other  written  or  printed  or  engraved 
instrument,  or  spurious  coin  or  metal,  shall  be  deemed  guilty 
of  a  felony,  and,  on  conviciion,  be  punished  by  imprisonment 
in  the  penitentiary  not  less  than  two  years.     In  every  indict- 


m 


i*' 


186 


AMERICAN  CRIMINAL  REPORTS. 


ment  under  this  section  it  shall  be  deemed  and  held  sufficient 
description  of  the  offense  to  charge  that  the  accused  did,  on 
,  unlawfully  and  feloniously  obtain,  or  attempt  to  ob- 
tain (as  the  case  may  be),  from  A.  B,  (here  insert  the  name  of 
the  person  defrauded)  his  or  her  money  or  property',  by  means 
and  use  of  a  cheat  or  fraud  or  trick  or  deception,  or  false  or 
fraudulent  representation,  or  false  pretense  or  confidence 
game,  or  false  or  bogus  check  or  instrument  or  coin  or  metal, 
as  the  case  mav  be,  contrary  to  the  form  of  the  statute,"  etc. 

In  the  case  of  State  v.  Fancher,  71  Mo.,  401,  so  much  of  the 
above-quoted  act  as  declared  that  an  indictment  drawn  in  ac- 
cordance with  the  prescribed  form  should  be  deemed  a  suffi- 
cient description  of  the  offense  was  assailed  on  the  ground  that 
it  denied  to  the  defendant  the  right  to  be  informed  "of  the 
nature  and  cause  of  the  accusation  against  him."  In  ])assing 
on  the  question  thus  raised,  the  constitutionality  of  the  act 
was  affirmed  on  the  distinct  ground  that  in  the  form  prescribed 
by  the  statute  "the  accusation  is  sufficiently  identified  by  the 
name  of  the  victim,  and  that  the  name  must  appear  in  every 
indictment  on  this  statute,  and,  appearing  there,  no  second  in- 
dictment for  the  same  offense  could  be  successfully  prose- 
cuted." In  this  ruling  the  decision  of  the  supreme  court  of 
Illinois  construing  an  Illinois  statute  like  ours  was  followed 
and  approvingly  quoted.    Morton  v.  People,  47  111.,  408. 

If,  as  held  in  these  cases,  the  name  of  the  victim,  or  person 
or  persons  from  whom  money  is  obtained  or  attempted  to  be 
obtained,  is  necessary  to  give  validity  to  an  indictment  follow- 
ing the  statutory  form,  it  necessarily  follows  that  the  indici 
ment  in  the  present  case  must  be  held  to  be  insufficient  because 
it  faih;  to  give  such  name  or  names.  It  charges  the  defendant 
with  attempting  to  obtain  from  "certain  persons,  firms  and 
corporations,  .  .  .  composing  a  voluntary  association 
known  as  the  'Brewers'  Association  of  St.  Louis  and  East  St. 
Louis,'  "  but  does  not  give  the  name  or  names  of  such  persons, 
but  such  names  are  entirely  omitted. 

Even  in  civil  proceedings,  when  the  statute  prescribes  the 
form  of  a  deed  to  be  made  by  a  sheriff  or  collector,  we  have 
held  that  such  form  becomes  substance,  and  that  a  deed  which 
does  not  conform  in  every  particular  to  the  form  piescribed  is 
null  and  void,  and   ineffectual  to  pass  title  to  the  property 


STATE  r.  McCHESNEY. 


187 


sought  to  be  conveyed.  WilUams  v.  McLanahan^  67  Mo.,  500; 
Hopkins  V.  Scoit,  SG  Mo.,  141.  If  such  be  the  law  in  a  civil  case, 
how  much  more  so  should  it  apply  in  a  criminal  case,  involving 
the  liberty  of  the  party  charged;  and,  if  a  deed  which  fails  to 
follow  strictl}'  the  form  prescribed  by  law  be  void,  why  should 
not  an  indictment  which  fails  to  follow  the  prescribed  form, 
by  omitting  to  name  the  person  from  whom  thu  accused  is 
charged  with  obtaining  or  attempting  to  obtain  money,  espe- 
citally  so  when,  without  such  name  being  given,  the  crime  with 
which  he  is  charged  is  not  identified?  Can  it  be  pretended 
that  an  indiclment  would  be  in  pursuance  of  the  statutory 
form  which  charged  the  accused  with  attempting  to  obtain 
money  from  certain  persons,  without  naming  them,  who  had 
formed  a  voluntary  association  known  as  the  "Methodist 
Church  Association  "  or  "  Farmers' Association  ? "  We  think 
not,  and  yet  the  indictment  in  this  case  is  of  that  character, 
differing  only  in  charging  that  the  persons  sought  to  be  de- 
frauded had  entered  into  an  association  known  as  the  "Brew- 
ers' Association." 

There  are  but  two  classes  of  persons  known  to  the  law,  viz., 
natural  and  artificial,  such  as  corporations.  Under  the  form 
of  an  indictment  prescribed  by  the  statute,  if  the  accused  is 
charged  with  obtaining  or  attempting  to  obtain  money  or 
|)rnperty  from  a  natural  person,  his  name  must  be  given;  if 
from  a  corporation,  an  artificial  person,  its  name  must  be 
given.  The  mdictment  in  this  case  neither  gives  the  name  of 
an  artificial  or  natural  person,  nor  does  it  aver  that  the  name 
or  names  of  such  persons  are  not  given  because  they  are  un- 
known to  the  grand  jury,  but  only  avers  that  a  more  particu- 
lar description  of  said  persons,  firms  and  corporations  is 
unknown. 

If  the  statutory  form  of  the  indictment  can  only  be  upheld 
(as  seems  to  have  been  ruled  in  the  case  of  State  v.  Fancher^ 
supra)  on  the  ground  that  it  requires  the  name  of  the  victim 
or  person  defrauded  to  be  given  in  the  indictment,  then  it  fol- 
lows that  in  no  case  where  the  name  of  the  person  or  persons 
from  whom  money  or  property  is  sought  to  be  obtained  by 
the  devices  named  in  the  statute  is  unknown,  can  the  statutory 
form  be  resorted  to  in  preferring  an  indictnient,  and  that  in 
that  class  of  cases  the  pleader  must  draw  his  indictnient  ac- 


.TTJIl 


yii 


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■  ■  *\    \  -V'  ,.  ., 


188 


AMERICAN  CRIMINAL  REPORTS. 


cording  to  the  rules  of  the  common  Ian',  and  these  rules  would 
require  him  to  set  forth  with  particularity  "the  trick  and  de- 
ception, or  false  and  fraudulent  representations,"  etc.,  as  well  as 
the  name  of  the  person  sought  to  be  defrauded,  if  known ;  and 
if  unknown  to  the  grand  jury,  that  fact  should  be  averred  as 
a  reason  for  not  setting  it  forth,  and  in  such  case  the  accused 
would  be  informed  sulficiently  of  the  cause  and  nature  of  the 
accusation  by  the  particular  description  of  the  trick,  device  or 
false  pretense  contained  in  the  indictment. 

The  indictment  is  bad  under  the  statute  because  it  fails  to 
follow  the  form  which  it  prescribes  in  an  essential  particular, 
and  it  is  also  bad  at  common  law  because  it  does  not  set  forth 
the  trick,  device  or  false  pretense  defendant  is  charged  W'ilh 
using  to  cheat  and  defraud. 

Judgment  reversed  and  defendant  discharged. 

(All  concur.) 


4 


Billings  v.  State. 

(107  Ind.,  54.) 

Forgery:  Name  of  deceased  person  —  Indictment  —  Plea  —  Waiver. 

1.  FoRQERY  —  Indictment  —  Name  of  deceased  person.— Where  a  for- 

gery is  committed  after  the  d»ath  of  the  man  whose  name  purports  to 
be  signed  to  the  instrument,  it  is  proper  to  charge  that  the  intent  was 
to  defraud  liis  estate,  as  the  estate  of  a  decedent  is  in  law  regarded  as 
a  person. 

2.  Plea  in  abatement. —  It  is  not  error  to  sustain  a  demurrer  to  a  plea  in 

abatement  which  is  uncertain  and  defective  because  of  an  incomplete 
sentence. 
8.  Waiver. —  Where  there  is  no  plea,  but  a  trial  is  had,  the  objection  tliat 
there  was  a  trial  witliout  a  plea  must  be  made  in  the  trial  court  or  it 
will  be  deemed  waived. 

Appeal  from  Daviess  Circuit  Court. 

J.  Baker  and  A.  J.  Padgett,  for  appellant. 

F.  T.  Hord  and  W.  B.  llord.,  attorney-general,  for  the  state. 

Elliott,  J.     The  information  charges  that  the  appellant 
forged  the  name  of  Louis  C.  Morgan,  deceased,  to  an  instru- 


ji'fe 


BILLINGS  V.  STATE. 


189 


ment  purporting  to  be  a  promissory  note ;  that  the  forgery 
was  committed  after  his  death,  and  was  committed  for  the 
purpose  of  defrauding  the  estate  of  Louis  C.  Morgan.  The  ob- 
jection urged  against  this  information  is  that  it  does  not  aver 
that  the  forgery  '.vas  committed  with  the  intent  to  defraud  any 
person.  The  reason  advanced  in  support  of  this  proposition  is 
that  the  law  does  not  regard  the  estate  of  a  decedent  as  a  per- 
son. This  contention  cannot  prevail.  The  estate  of  a  dece- 
dent is  a  person  in  legal  contemplation.  "  The  word  *  person,' " 
says  Mr.  Abbott,  "  in  its  legal  signification,  is  a  generic  term, 
and  includes  artificial  as  well  as  natural  persons."  2  Abbott, 
Law  Diet.,  271;  Douglass  v.  Pacific,  etc.,  Co.,  4  Cal.,  304; 
Planterii\  etc.,  Bank  v.  Andrews,  8  Port.  (Ala.),  404.  It  is  said 
in  another  work  that  "persons  are  of  two  kinds:  natural  and 
artificial.  A  natural  person  is  a  human  being.  Artificial  per- 
sons include  (1)  a  collection  or  succession  of  natural  persons 
forming  a  corporation ;  (2)  a  collection  of  property  to  which 
the  law  attributes  the  capacity  of  having  rights  and  duties. 
The  latter  class  of  artificial  persons  is  only  recognized  to  a  lim- 
ited extent  in  our  law.  Exam|>les  are  the  estate  of  a  bankrupt 
or  deceased  person."  2  Rapalje  &  Lawrence,  Law  Diet.,  954. 
Our  own  cases  inferentially  recognize  the  correctness  of  the 
definition  given  by  the  authors  from  whom  we  have  quoted, 
for  they  declare  that  it  is  sufficient,  in  pleading  a  claim  against 
a  decedent's  estate,  to  designate  the  defendant  as  the  estate 
vv:  the  deceased  person,  naming  him.  Ghm  v.  Collins,  43 
Iiid.,  271.  LTnless  we  accept  this  definition  as  correct,  there 
would  be  a  failure  of  justice  in  cases  where,  as  here,  the  for- 
gery is  committed  after  the  death  of  the  person  whose  name 
is  forged ;  and  this  is  a  result  to  be  avoided  if  it  can  be  done 
consistent  with  principle.  We  perceive  no  difficulty  in  avoid- 
ing such  a  result;  for,  to  our  minds,  it  seems  reasonable  that 
the  estate  of  a  decedent  should  be  regarded  as  an  artificial  per- 
son. It  is  the  creation  of  law  for  the  purpose  of  enabling  a 
disposition  of  the  assets  to  be  properly  made,  and,  although 
natural  persons,  as  heirs,  devisees  or  creditors,  haVe  an  interest 
in  the  property,  the  artificial  creature  is  a  distinct  legal  entity. 
The  interest  which  natural  persons  have  in  it  is  n  A  complete 
until  there  has  been  a  due  administration;  and  one  who  forges 
the  name  of  the  decedent  to  an  instrument  purporting  to  be  a 


190 


AMERICAN  CRIMINAL  REPORTS. 


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promissory  note  must  be  regarded  as  having  intended  to  de- 
fraud the  estate  of  the  decedent,  and  not  the  natural  persons 
having  diverse  interests  in  it,  since  he  cannot  be  presumed  to 
have  known  who  those  persons  were,  or  what  was  the  nature 
of  their  respective  interests.  The  fraudulent  intent  is  against 
the  artificial  person, —  the  estate, —  and  not  the  natural  per- 
sons who  liave  direct  or  contingent  interests  in  it. 

Tlie  appellant  iiled  a  plea  in  abatement,  but  we  deem  itonl}' 
necessary  to  say  of  this  plea  that  an  incomplete  sentence  leaves 
it  in  sucii  a  condition  as  to  make  it  fatally  defective.  It  is  a 
familiar  rule  that  omissions  or  defects  in  a  plea  in  abatement 
cannot  be  supplied  or  cured  by  intendment. 

The  record  shows  that  the  trial  court  sustained  a  demurrer 
to  the  plea,  and  tiiat  thereupon  a  jury  was  called  and  sworn 
and  evidence  heard;  but  it  does  not  show  an  arraignment  or  a 
plea.  No  objection  was  made  below  in  an}'  form  to  the  failure 
of  the  court  to  arraign  the  defendant,  or  to  require  him  to 
plead  to  the  indictment.  The  question  is  made  for  the  first 
time  by  the  assignment  of  errors  in  this  court.  If  the  question 
had  been  properly  saved  it  would  be  our  duty  to  reverse  the 
Judgment;  for  in  criminal  cases  there  must  be  a  plea,  as  a  trial 
without  a  plea  is  certainly  erroneous.  2'indall  v.  State,  71  Ind., 
314,  and  cases  cited;  Weaver  v.  State,  83  Ind.,  289;  Sanders  v. 
State,  85  Ind.,  318  (see  page  332).  On  the  authority  of  S/iofner 
V.  State,  93  Ind.,  519,  it  must,  however,  be  held  that  the  ques- 
tion is  not  properly  presented.  It  should  have  been  presented, 
as  that  case  declares,  by  a  motion  for  a  new  trial.  Judgment 
affirmed. 

ON   PETITION   FOR   A   REUEAEING. 

In  the  argument  on  the  petition  for  a  rehearing  it  is  insisted 
that  we  did  not  decide  one  of  the  points  made  by  counsel  as  to  the 
sufficiency  of  the  information.  The  argument  upon  this  point  in 
the  original  brief  was  exceedingly  meager,  as  counsel  evidently 
relied  upon  other  points  for  the  reversal  of  the  judgment.  As 
stated  in  the  original  brief,  the  objection  now  under  discussion 
was  that  "the  prosecuting  attorney  nowhere  charges  the  for- 
gery of  the  note  by  making  the  same  or  causing  it  to  be  done," 
and  this  objection  is  discussed  at  much  length  in  the  brief  on 
the  petition.    We  think  it  without  merit.    The  introductory 


7^ 


STATE  V.  HORAN. 


191 


clause  of  the  information  reads  thus:  "Hirara  McCormick,  the 
prosecuting  attorney  of  the  forty-ninth  judicial  circuit,  prose- 
cuting the  pleas  of  the  state  of  Indiana,  gives  the  court  to  know 
and  be  informed  that  heretofore,  to  wit,"  etc.  The  conclusion 
of  the  information  reads  thus:  "So  the  said  prosecuting  attor- 
ney says  that  said  Jesse  Billings  was  then  and  there  guilty  of 
forgery."  In  the  body  of  the  information  the  word  "  affiant " 
is  used  where  the  words  "  prosecuting  attorney  "  sliould  be  em- 
])loyod,  and  on  this  mistake  is  founded  appellant's  argument; 
i)ut  the  whole  information,  taken  together,  clearly  and  unrais- 
tiiliably  sliows  that  tlie  charge  was  preferred  by  the  proper 
officer.  As  this  appears,  we  cannot  hold  that  there  was  any 
defect  in  the  information  available  on  a  motion  in  arrest  of 
judgment.  We  do  not  deem  it  necessary  to  again  discuss  the 
questions  considered  by  us  in  our  former  opinion.  Petition 
overruled. 

NiBLACK,  J.,  dissents  from  this  opinion. 


State  v.  IIoran. 

(64  N.  H.,  548.) 

Forgery  :  Indictment, 


1.  Indictment — Variance. —  An  indictment  which  chaigos  the  defendant 

with  forging  an  instrument  purporting  to  l)e  signed  by  A.,  and  sets  out 
an  instrument  purporting  to  be  signed  by  B.,  is  Iwd,  on  demurrer,  for 
repugnancy. 

2.  Dfscku^tion  of  instrument. —  Under  G<;neral  Laws  of  New  Hampshire, 

chapter  376,  section  1,  making  it  a  crime  to  ct)unterfeit  any  warrant, 
order  or  refjuest  for  the  i)ayment  of  money,  or  tlie  delivery  of  any 
property  or  writing  of  value,  an  indictment  for  forging  an  application 
for  an  insurance  policy  is  bad  which  does  not  aver  in  the  language  of 
the  statute  that  the  policy  was  a  writing  of  value. 

Indictment  charging  that  the  defendant  on,  etc.,  at,  etc., 
"  with  force  and  arms  did  falsely  make,  counterfeit  and  sign 
a  certain  application  to  the  Metropolitan  Life  Insurance  Com- 
pany for  a  policy  of  insurance,  to  be  issued  by  said  company, 
purporting  to  be  made  and  signed  by  one  James  Jennings, 


192 


AMEllICAN  CRIMINAL  REPORTS. 


- ,  > ) 


•  '■■."J. 


which  said  false  and  counterfeit  application  is  as  follows,  to  wit. 
.  .  .  with  intent  to  defraud  said  company,  contrary,"  etc. 
The  defendant  demurred. 

Sullowny  i&  Topliff,  for  defendant. 

li.  M.  Wallace  and  Burnham  &  Broion.,  for  the  state. 

Smith,  J.  The  indictment  charges  the  defendant  with  coun- 
terfeiting an  application  for  a  policy  of  insurance  purporting 
to  be  signed  by  James  Jennings.  The  instrument  sot  out  pur- 
ports to  be  signed,  not  by  James  Jennings,  but  by  Kate  Kelly, 
and  to  be  her  application  for  a  policy  of  insurance  upon  the 
life  of  James  Jennings.  As  the  name  of  the  applicant  in  the 
purport  clause  of  the  indictment  varies  from  the  name  given 
in  the  tenor  clause,  the  repugnance  is  fatal.  2  Bish.  Crim. 
Proc.  (:^d.  ed.),  ^  416;  licx  v.  Hunter,  Kuss.  &  K.,  511;  The 
King  v.  Jones,  1  Doug.,  300;  State  v.  Clad',  2:^  N.  If.,  429.  The 
allegation  that  it  is  the  application  of  James  Jennings  is  de- 
scriptive, and  cannot  be  rejected.  Com.  v.  Jtny,  3  Gray,  441; 
State  V.  Shei-hnrne,  59  N.  II.,  99.  The  indictment  is  bad  also 
because  it  does  not  show  on  its  face  that  the  instrument  is  one 
of  which  forgery  can  be  committed.  The  statute  makes  it  a 
crime  to  counterfeit,  among  other  writings,  "any  warrant, 
order  or  request  for  the  payment  of  money,  or  the  deliver}' 
of  any  property  or  writing  of  value."  General  Laws,  ch.  270, 
§  1.  The  indictment  does  not  allege  that  the  insurance  policy 
requested  is  either  of  the  writings  mentioned  in  the  statute.  It 
should  have  averred  in  formal  and  appropriate  language  that 
the  policy  is  a  writing  of  value.    Demurrer  sustained. 

Allen,  J.,  did  not  sit.     The  others  concurred. 


Commonwealth  v.  White. 

(145  Mass.,  392.) 

Forgery  :  Indictment  —  Evidence  of  other  forgeries, 

1.  Evidence  —  Other  transactions.— On  indictment  in  fifty-four  counts 
for  forging  and  uttering  certain  receipted  bills  for  merchandise,  argu- 
ment on  defendant's  motion  to  quash  was,  by  his  consent,  deferred 


';•■;;       \l 


COMMONWEALTH  v.  WHITE. 


193 


until  the  dose  of  the  government's  case,  wlion  it  was  cnlloil  up,  nnd 
all  but  six  of  tlio  counts  were  qunslied,  by  consent  of  Mie  Rovornmcnt 
attorney.  Defendant  then  asked  the  court  to  strike  o'.i  certain  evi- 
dence wliich  bad  been  introduced  under  tbe  other  counts  tendinR  to 
show  lliafc  he  had  fabricated  certain  other  unreceipted  bills  of  a  like 
character,  and  uttered  them  to  the  same  jtarties  by  a  continuous  series 
of  transactions  extending  some  months  later  than  the  latest  forgery 
alleged  in  said  six  counts.  Ilrld,  that  the  evidence  in  question  was 
a<linissil)le  under  the  said  six  counts  as  forming  a  jiait  of  a  single 
scheme  of  fraud  and  as  tending  to  prove  knowledge.! 
2.  IxDicTMi'.NT  —  Requisites. —  On  indictment  for  forging  and  uttering 
a  receipted  bill  for  goods,  hehl,  that  the  instrument  being  sot  out,  and 
purporting  cm  its  face  to  bo  the  thing  prohibited  by  statute  to  be 
forged,  there  was  no  need  of  further  allegations  to  show  how  it  was 
that  thing,  or  how  it  could  be  used  as  nn  instrument  of  fraud,  or  that 
it  was  so  used  in  fact. 

Exceptions  from  Superior  Court,  Suffolk  County;  Dewe}^, 
Jiulge. 

Francis  L.  White  Avas  indicted  for  forgery  and  uttering 
forged  papers,  was  found  guilty,  and  alleged  exceptions. 

E.  Avenj,  for  defendant. 

A.  J.  Waterman,  attorney-general,  for  the  commonwealth. 

IIoi.Mics,  J.  The  most  serious  question  ia  this  case  arises  in 
a  way  for  wiiich  the  defendant  is  partly  responsible.  The  in- 
dictment was  in  llfty-four  counts  lor  forging  and  uttering 
twelve  bills  of  parcels,  and  a  motion  to  quash  was  filed;  but 
tlie  defendant,  instead  of  arguing  the  motion  at  the  outset,  con- 
sented tliat  the  court  should  reserve  all  his  rights  under  it, 
with  the  understanding  that  it  would  be  disposed  of  at  a  later 
stage.  Accordingly  the  trial  proceeded,  and  evidence  was  put 
in  under  all  the  counts.  Then,  at  the  close  of  the  government's 
case,  the  inotion  to  quash  was  called  up,  and,  by  the  consent  of 
the  government,  all  but  six  counts  were  quashed.  The  de- 
fendant thereupon  asked  that  the  evidence  introduced  under 
the  other  counts  should  be  stricken  out,  but  the  court  refused 
so  to  order.  It  is  suggested  that  the  defendant  has  suffered  by 
a  device  intended  to  get  before  the  jury  evidence  which  was 
not  admissible  on  the  issues  upon  which  he  was  convicted, 
under  the  pretense  that  it  sustained  other  issues,  which  were 


'  <! 


1  See  note. 


Vol.  vn-13 


101 


AMERICAN  CRIMINAL  REPORTS. 


1 

'      i 

^ 

?-, 

'  .■■'■..'' 

1      f 

'•■■'  -;,  ■. 

■          .       ? 

,      ,n'v*' 

i\ 


abandonod  wlien  tlio  evidence  was  in.  Tt  need  not  bo  said 
that,  if  this  apiiearcd  to  be  the  fact,  the  verdict  couhl  not  stand  ; 
but  wo  cannot  ;,mthor  any  such  conchision  from  the  record. 
Tho  question  whether  the  evidence  was  admissihle  n|)on  the 
issues  linaiiy  tried  is  as  fully  o|)en,  and  is  to  ho  considered  on 
the  same  |)rinci|iles,  as  if  the  counts  not  quiished  hnd  been  the 
only  ones  from  tho  beginning.  If  it  were  true  that  evidence; 
was  olfercd  upon  an  issue  and  retained  for  its  bearing  upon  Jin- 
otlior,  it  would  bo  hard  to  see  how  tho  defendant  had  sulTerod, 
if  it  was  adniissdjlo  upon  that  other,  even  though  the  fonner 
was  a  chai'iic  of  a  distinct,  substantive  fclonv.  See  Com.  r. 
Sh'ar)is,  10  jMet.,  2o{\.  Hut,  so  far  as  ajjiiears.  tiic  evidence  was 
olfered  and  admitted  generally,  for  any  purpose  for  which  it 
was  competent;  and  if,  at  the  time,  tliere  was  a  possibility  that 
its  chief  use  was  to  sustain  the  other  counts,  the  opposite  pos- 
sibility was  no  less  plain  to  the  delendant,  who  was  insisting 
that  those  counts  were  bad.  Tho  unceitainty  was  by  the  df- 
fendant's  consent,  who  had  agreed  that  they  need  not  be  pas.sed 
upon  nntil  the  evidence  was  in.  Wo  see  no  reason  why  \h> 
could  not  consent  to  a  course  which  preserved  all  his  rights. 

Wo  aio  of  opinion  that  tho  evidence  was  admissihlo  under 
the  counts  not  quashed,  u])on  which  the  defendant  was  con- 
victed. These  counts  were  for  forging  certain  receipted  bills 
for  hides,  etc.,  and  for  uttering  the  same.  Tho  evidence  ob- 
jected to  tended  to  show  that  the  defendant  fabricated  certain 
other  unreceipted  bills  of  a  like  character,  and  uttered  them  to 
the  same  parties,  by  a  continuous  sei'ios  of  transaction.s,  ex- 
tending some  months  later  than  the  latest  forgerv  of  which  the 
defendant  was  convicted.  It  appeared  that  there  was  a  con- 
tract between  II.  Leonard  &  Co,  and  the  ilefendant,  by  which 
II.  Leonard  6c  Co.  were  to  sell  the  defendant  hides,  which  were 
to  be  tanned  and  sold  by  him;  he  giving  Leonard  &  Co.  his 
note  at  four  months  for  a  little  more  than  the  sum  paid  by 
them,  and  tho  property  in  tho  hides  remaining  in  Leonard  it 
Co.  until  all  the  notes  wore  paid.  The  government's  evidence 
tended  to  show  that  a  frequent  course  of  dealing,  or  at  least 
the  course  of  dealing  as  it  was  made  to  appear  to  Leonard  v.t 
Co.,  in  the  alleged  fraudulent  transactions,  was  that,  instead  of 
Leonard  &  Co,  themselves  purchasing  the  hides  which  the  de- 
fendant was  to  tan,  the  defendant  purcLr.sed  them,  presented 


COMMONWEALTH  v.  WHITE. 


105 


tho  bill  from  tlio  sellere  to  liini  —  receipted  in  tlio  earlier  trans- 
actions;  altorwnrds  unreceipted  —  to  Jieonurd  *fc  (.'o, ;  wrote 
upon  it  tiiat  liie  hides  bolon^^ed  to  Leonard  »fc  Co.,  under  tho 
contract,  or  to  that  effect;  received  the  cash  to  pay  for  them; 
and  gave  his  note  as  ])rovideil  in  tlio  contract,  just  as  if  Leon- 
ard iV:  Co.  had  themselves  ordered  and  paid  for  the  hides,  and 
liad  then  consigned  them  to  him.     It  will  be  seen  that  the  uso 
made  of  the  bill,  receipted  or  unreceipted,  was  to  show  il  to 
J.oonurd  it  Co.,  in  order  to  satisfy  them  that  hides  had  been 
bought  which  were  to  belong  to  them,  ami  for  whidi  they  were 
to  pay  in  the  first  instance,  unilerthe  contract,  and  thus  to  on- 
ablo  tiio  <lel'('ndant  to  get  (ash,  giving  his  note  in  return.     All 
the  bills,  then,  receipted  or  uni'eceipted,  if  known  by  the  de- 
fendant not  to  be  genuine,  were  used  by  him  in  a  single  scheme 
of  fraud  under  his  contract  with  J.conard  A:  Co.     Jjjinhi  v. 
McGi('<j(>i\  i;J  Allen,  172,  liSO;  Jonlitu  i\  (hf/ooi/,  IW  .Mass.,  457; 
Com.  V.  /'jL^fitHiD,  I  (.'ush.,  18J),  21<».     And,  on  the  (juestion  of 
the  defendant's  Knowledge  that  the  bills  in   issue  were  not 
genuine,  his  possession  and  use  of  other  similar  false  bills,  about 
the  same  time,  whether  before  or  afterwards,  in  a  continuous 
series  of  transactions  with  the  same  party  under  the  same  con- 
tract, was  competent  to  show  that  his  uso  of  tho  former  was 
not  innocent.     Qnn.  v.  Coe,  115  ^Mass.,  481,  501;  Gnu.  r.  Hall, 
4  Allen,  a()5,  300;  Com.  v.  Pn'cc,  10  Gray,  472,  47(1;  JMj.  v. 
Ju»\sttr,  Dears.  Cr.  Cas.,  45(5.     Thus  the  evidence  eatislies  the 
general  conditions  which  have  been  laid  down  in  similar  cases. 
See,  further,  Com.  v.  Juch'son,  1152  ^fass.,  1(5,  18.     To  be  sure, 
the  evidence  was  not  admissible  to  ])rove  that  the  bills  in  issue 
were  forged  {Codcllo  t\  Crowell,  139  Mass.,  58S;  2  N.  E.  Rep., 
69S),  and  the  jury  was  so  instructed:  and  it  might  be  thought 
that,  in  a  case  like  this,  when  the  bills  ran  to  the  defendant, 
purported  to  be  for  hides  bought  by  him,  and  were  certilied  by 
him,  if  the  jury  believed  that  the  bills  were  forged,  it  would 
follow,  almost  necessarily,  that  the  defendant  knew  them  to  be 
so,  and  so  it  might  be  thought  that  the  evidence  of  his  use  of 
other  false  bills  was  unnecessary  for  tho  purpose  for  which  it 
was  admitted,  while  it  tended  to  prejudice  the  defendant  in  the 
eyes  of  the  jury.     But  the  defendant's  knowledge  was  not  ad- 
mitted (on  the  contrary,  it  is  still  argued  that  there  was  no 
suilioient  evidence  to  warrant  the  verdict),  and  evidence  of 


196 


AMERICAN  CRIMINAL  REPORTS. 


knowledofe,  which  otherwise  would  be  admissible,  is  not  made 
inadmissible  bj'  the  fact  that  there  is  other  strong  evidence  of 
knowledge  in  the  case. 

It  is  argued  that  tlie  bills  not  in  issue,  which  were  put  in. 
were  not  signed,  and  therefore  were  not  forgeries,  and  were 
inadmissible  for  tliat  reason.  It  is  not  necessary  to  consider 
whether  they  were  teclinically  f<M'geries  (see  Com.  v.  Ai/er,  3 
Cush.,  150, 152;  Com.  v.  Jliiuh,  101  Mass.,  L'09,  210),  for  if  they 
were  not  they  were  none  the  less  admissible.  Being  fabri- 
cated instruments  similar  to  those  in  issue  in  every  respect  ex- 
cept in  regard  to  signature,  their  tendency  to  show  knowledge, 
and  a  fraudulent  sciieme  on  the  defendant's  part,  was  not  af- 
fected by  the  degree  or  kind  of  fraud  committed  in  their  man- 
ufacture and  use.  Tlie}^  equally  purported  to  be  a  declaration 
by  the  supposed  sellers,  in  the  course  of  business,  that  they  had 
sold  the  hides  mentioned  in  them  to  the  defendant,  whetiier 
they  acknowledged  or  demanded  payment,  and,  signed  or  un- 
signed, they  equally  served  the  purpose  of  getting  the  amount 
of  the  bill  from  Leonard  &  Co. 

"We  can  have  no  doubt  that  the  evidence  Avarranted  a  con- 
viction. The  persons  by  whom  the  bills  purported  to  have 
been  made  out  and  signed  testified  that  the\'  were  not  gen- 
uine, and  did  not  represent  genuine  transactions.  The  de- 
fendant, who  fairly  might  be  ])resumed  by  the  jury  to  know 
the  facts  about  sales  ])urporting  to  have  been  made  to  him, 
used  the  bills  certilied  ujwn  them,  and  received  the  money 
for  them,  as  has  been  stated.  It  is  suggested  that  by  the  con- 
tract Leonard  it  Co.  were  authorized  to  buy  for  him,  and  that 
the}'  may  have  had  the  bills  made  out,  or,  at  least,  that  he  may 
have  supposed  the  bills  to  be  genuine  and  correct.  But  it  is  a 
mistake  to  say  that  the  contract  authorized  Leonard  &  Co.  to 
buy  as  agents  for  the  defendant,  or  to  charge  goods  to  him. 
The  phrase  in  the  contract,  "  e.\'cept  in  case  the  hides  are 
bought  by  said  Leonard  *fc:  Co.  for  said  White,"  does  not  im- 
port an}'  such  authority.  It  means  only  to  distinguish  hides 
bought  for  the  purpose  of  being  sold  to  White  from  those 
bought  by  Leonard  &  Co.  in  the  ordinary  course  of  their  busi- 
ness, and  afterwards  sold  to  him;  and  it  appears  on  the  face 
of  the  contract  that  the  only  purpose  of  this  distinction  is  to 
adopt  a  different  way  of  fixing  the  date  from  which  White 


COMMONWEALTH  r.  WHITE. 


197 


shall  be  charged  with  interest.  The  contract  throughout  con- 
templated Leonard  &  Co.'s  purchasing  hides  on  their  own  be- 
half, and  selling  them  to  the  defendant  only  after  his  notes 
had  been  paid.  There  was  no  exMdence  of  any  course  of  deal- 
ing by  which  they  bought  in  his  name,  or  of  any  case  where 
they  had  done  so;  and  there  was  no  reason  why  they  should 
have  given  their  check  to  him.  if  they  had  conducted,  or  had 
purported  to  have  conducted,  the  dealings  with  the  supposed 
seller  of  the  hides.  On  the  face  of  the  transactions  there  was 
evidence  that  the  defendant  uttered  the  bills  (3  Inst.,  171) 
knowing  them  to  be  false,  if  they  were  false  in  fact.  But,  in 
addition,  there  was  evidence  as  to  the  ^lore}'  bill  that  Leonard 
iV:  Co.  had  no  transaction  with  Morey,  and  that  the  defendant 
did  buy  hides  corresponding  to  a  part  of  the  hides  set  forth  in 
the  bill;  and  evidence  tending  in  the  same  direction  as  to  the 
other  parties  named  in  the  inilictment,  and  that  all  that  Leon- 
ard knew  of  the  supposed  transactions  with  them  he  learnt 
from  the  defendant.  It  is  true  that  the  defendant's  clerk 
could  not  say  from  whom  he  received  any  particular  bill,  but 
he  testified  that  they  were  all  brought  by  the  defendant  or 
left  at  the  oihce,  where  the  defendant  then  wrote  his  name  on 
them  and  got  the  money.  We  do  not  think  it  necessary  to 
state  the  evidence  in  greater  detail.  See  Com.  v.  2'alhot,  2 
Allen,  101.  The  fact,  if  it  bo  one,  that  the  defendant  intended 
to  pay  his  notes  at  maturity  did  not  affect  his  liabilit}'.  Com. 
V.  Ilcnrij,  lis  ]\r!i^s.,  -100. 

The  motion  to  quash  was  rightly  overruled.  A  receipted 
bill  for  goods  purports  to  be  an  accjuittance  and  discharge  for 
tlie  mone}'  due  in  respect  of  these  goods.  Cum.  v.  Ladd,  15 
Mass.,  520.  See  Com.  v.  Talbot,  ubi,  supra.  The  instruments 
being  set  out,  and  purporting  on  their  face  to  be  the  thing  pro- 
hibited to  be  forged  (Pub.  St.,ch.  2<»4,  §  1),  there  is  no  need  of 
further  allegations  to  show  how  it  was  that  thing,  or  how  it 
could  be  used  as  an  instrument  of  fraud,  or  that  it  was  so  used 
in  iact.  2  East,  P.  C,  077;  Com.  v.  Costello,  120  Mass.,  358; 
Com.  V.  Ldt/tf,  ubi  ftupra.  There  is  a  slight  peculiarity  in  the 
receipt  set  out  in  the  seventh  count,  as  it  bears,  in  addition  to 
the  words  "Terms,  cash,"  the  words  "our  sight  draft."  But 
the  word  "  settled,"  followed  by  the  signature,  imports  a  dis- 
charge of  the  money  due  for  the  price,  whether  it  was  dis- 


,  m 


198 


AMERICAN  CRIMINAL  REPORTS. 


charged  by  money  or  draft.  Whether  it  is  to  be  read  as 
impoi-tin<^  a  settlement  for  money,  especially  in  view  of  the 
words  "Paid  for  by  II.  Leonard  &  Co.,"  in  the  margin,  we 
need  not  consider.  We  notice  nothing  else  in  the  exceptions 
which  calls  for  particular  remark.     Exceptions  overruled. 


Note. —  Evklence  of  other  offenses. —  As  a  general  rule,  evidence  of  other 
offenses,  tlioujj;h  of  the  same  nature,  is  not  adniissihie  for  the  purpose  of 
showing-  that  the  defendant  is  guilty  of  the  particular  offense  charged;  but 
one  of  the  exceptions  to  the  general  rule  is  that  su(^h  evidence  may  be  re- 
ceived to  show  the  intent  with  wliich  the  act  charged  was  comniitted, 
McDonald  v.  State,  83  Ala.,  4C. 

Possension  of  other  forged  writings.  —  Under  an  indictment  for  the  forgery 
of  a  written  order,  which  the  defendant  presented  to  the  person  on  whom 
it  was  drawn,  and  obtained  goods  on  the  faith  of  it,  it  is  pernussiblo  for  tiio 
prosecution  to  prove  hi.s  jiot^session,  at  or  about  the  same  time,  of  another 
forged  order  in  his  own  favor,  purporting  to  be  the  act  of  the  same  person, 
as  tending  to  sliow  his  guilty  intent  iu  respect  to  the  first.  Ibid.  See,  also. 
Card  V.  State,  109  Ind..  415. 

Evidence  tending  to  show  that  the  defendant,  on  trial  for  forgery,  at  or 
about  the  time  the  crime  charged  was  committed  had  in  Ills  possession 
another  forged  note  similar  to  tlie  one  set  out  in  tlie  indictment,  is  admis- 
sible without  the  production  in  court  of  such  other  note.  State  v.  Brecken- 
ru/ye  (Reed  and  Rothrock,  JJ.,  dissenting),  OT  Iowa,  204. 

But  in  State  v.  Saunders,  (W  Iowa.  870,  it  is  helil  that  evidence  tending  to 
show  a  questionalile  connection  of  defendant  with  another  note  is  inadmis- 
sible, there  being  no  evidence  that  such  otlier  note  was  forged,  and  it  not 
being  produced  or  its  absence  accounted  ft)r. 

Fictitious  bill  of  costs  In/  Justice  of  tlie  peace. —  A  Justice  of  the  peace  who 
makes  up  a  bill  of  costs  against  the  county  in  a  fi<.'t  itious  case,  and  sells  it  to  a 
third  party,  who  presents  it  for  payment  to  the  county,  is  guilty  of  the  crime 
of  forgery,  as  defined  by  section  549:3,  code  of  Tennessee.  Lutlrell  v.  State, 
85Tenn.,233. 

Indictment  —  Sv^icioieij  of  charge. —  Where  an  indictment  for  forgery 
charges  the  offense  with  a  degree  of  certainty  sufHcient  to  enable  the  conit 
to  pronounce  a  proper  judgment  in  case  of  conviction,  an  offense  is  sufli- 
cienlly  charged  thereby.     Ibitl. 

Arrest  of  judgment —  Time  for  motion. —  Where  a  motion  for  a  new  trial 
is  overruled,  and  an  order  is  granted  allowing  an  appeal,  wliich  ajipcal  is 
subsequently  jjcrfected  by  appellant  recognizing,  and  a  motion  in  arrest  of 
judgment  is  made  twelve  days  al'ttrwards,  without  any  vacation  of  the 
order  of  the  court  granting  the  appeal,  the  allowance  of  such  motion  in  ar- 
rest will  not  be  considered  ly  the  appcdlato  coin-t  on  the  at)peal.     Ibid. 

New  trial  — Failure  of  evidence  ~  Fatal  variance  jh.— Where,  on  a  trial 
for  the  forgery  of  a  fictitious  bill  of  costs  by  a  justice  of  the  peace,  there 
was  no  proof  in  what  county  the  forgery  was  committed,  or  that  the  de- 
fendant nuide  or  signed  the  bill  of  costs,  or  authorized  any  one  to  make  or 
sign  it,  and  the  instrument  set  out  in  the  indictment  contained  the  names 


COMMONWEALTH  v.  FITZPATRICK. 


199 


of  seven  witnesses,  while  the  instrument  shown  in  the  proof  contained  the 
names  of  ten  witiiesses,  and  the  names  of  two  witnesses  were  written  in  the 
latter  instrument  diiferently  from  the  way  tliey  were  written  in  tlie  indict- 
ment, held,  that  there  was  such  a  failure  of  evidence,  and  such  a  fatal 
variance,  as  to  require  a  new  trial  to  be  had.     Ibid. 


Common  wp:altii  v.  Fitzpateick. 

(131  Pa.  St.,  109.) 

Former  jeopardy:  Discharge  of  jury  without  consent  of  defendant. 

Former  jeopardy  —  DisciiAnoE  of  jury  at  end  op  term.— The  dis- 
charge of  a  jury  in  a  cai)ital  case  on  the  List  day  of  the  term,  after 
they  have  for  live  days  failt-d  to  agree  upon  a  verdict,  is  not  because 
of  an  absolute  necessity,  in  the  absence  of  any  reason  wh3'  the  term 
could  not  be  continued,  and,  if  made  against  the  objection  of  the  de- 
fendant, is  a  bar  to  another  trial  for  the  same  offense.' 

Error  to  Couit  of  Oyer  and  Tonninor,  Lackawanna  County; 
Hon.  Alfred  Hand,  President  .]u(l<^e. 

Indictment  a<>;ainst  Peter  Fitzpatrick,  F.  W,  Fiedler,  F.  L. 
Ross,  l^ernard  McCabo  and  John  J.  Keefc.  The  comnion- 
uealtli  brings  error  on  a  judgment  overruling  the  demurrer  to 
det'endants'  plea  of  former  jeopardy. 

//.  M.  3hi'ard.i,  for  plaintiff  in  error. 

F/'t'd  W.  Gunster  and  Charles  II.  Wdls.  for  defendants  in 
error. 

Wilmams,  J.  The  defendants  in  error,  who  were  defendants 
below,  were  indicted  and  put  on  trial  for  murdei*.  At  the  con- 
clusion of  the  evidence  the  questions  involved  were  discussed 
by  counsel,  and  the  jury,  after  the  charge  of  the  court,  retired 
to  deliberate  upon  their  verdict.  This  was  on  the  1st  day  of 
February,  1S87.  On  the  5th  of  the  same  month,  which  was 
iSalurday,  anil  the  last  day  of  the  regular  term  of  the  court, 
the  jury,  ni>t  having  agreed  upon  a  verdict,  was  discliarged  by 
the  court,  notwithstanding  the  objection  of  the  defendants. 
The  learned  judge  of  the  oyer  and  terminer  caused  the  foUov;- 

1  fcjee  note. 


WE' 


200 


AMERICAN  CRIMINAL  REPORTS. 


ing  adjiKlication  to  bo  entered  on  the  minutes:  "Now,  to  ivit, 
5th  February,  1S87,  the  jury  in  this  case  having  come  into 
court  repeatedly  and  affirmed  that  they  could  not  agree,  and 
that  they  had  made  every  possible  effort  to  agree,  and  that 
they  still  cannot  agree,  the  term  of  the  court  now  expiring^ 
the  court  being  satisfied  that  it  is  useless  to  detain  the  jury 
longer,  the  jury  are  discharged  from  the  further  consideration 
of  the  case;  to  which  order  and  discharge  the  defendants  ex- 
cept, at  whose  request  a  bill  is  sealed."  The  defendants  were 
again  called  for  trial  in  the  following  month  of  May,  and 
pleaded  specially  the  former  trial,  and  the  discharge  of  the 
jury  without  rendering  a  verdict,  in  bar  -^f  any  further  trial 
for  the  same  offense.  The  commonwealth  «^^;v.;;rr':'l  to  this 
plea,  and  the  court  after  argument  entered  judgment  on  the 
demurrer  in  favor  of  the  defendants,  and  discharged  them  from 
custody. 

The  question  thus  raised  is  whether  the  facts  set  forth  in  the 
special  plea  show  that  the  defendants  have  been  once  in  jeop- 
ardy for  the  offense  now  charged  against  them.  If  so,  the 
constitutional  provision  that  "  no  person  shall  for  the  same  of- 
fense be  twice  put  in  jeopardy  of  life  or  limb"  is  a  conclusive 
answer  to  the  indictment.  Jeopardy  is  the  peril  in  which  a 
defendant  is  put  when  he  is  regularly  charged  with  crime  before 
a  tribunal  properly  organized  and  competent  to  try  him.  lie 
must  under  such  circumstances  submit  the  sufficiency  of  his 
defense  to  the  decision  of  a  jury  of  his  peers.  He  is  in  their 
hands,  exposed  to  the  danger  of  conviction,  with  all  its  con- 
sequences; or,  in  the  language  of  the  bill  of  rights,  he  is  "in 
jeopardy."'  From  this  jeopardy  he  is  to  be  relieved,  if  relieved 
at  all,  by  the  verdict  of  the  jury.  Unless  s<jme  overriding 
necessity  arises  after  the  jeopardy  begins,  the  trial  nuist  pro- 
ceed until  it  ends  in  a  conviction  or  an  acquittal.  In  a  capital 
case,  therelbre,  the  court  has  no  power  to  discharge  a  jury 
without  the  consent  of  the  defendant,  unless  an  absolute  neces- 
sity requires  it.  Co?n.  v.  C(>ul\  G  Serg.  &  R,  577.  The  mere 
inability  of  the  jury  to  agree  within  a  few  hours  or  days  is  not 
such  a  necessity  {Com.  v.  Clue,  3  Rawle,  498);  nor  is  the  fact 
that  the  regular  term  is  approaching  an  end,  for  the  courts  have 
power  to  continue  the  term  until  the  case  can  be  properly 
ended.    The  serious  illness  or  insanity  of  the  defendant,  and 


COMMONWEALTH  v.  FITZPATRICK. 


201 


the  illness,  insanity  or  death  of  the  judge  or  a  juror  engaged 
in  the  trial,  have  been  held  to  create  a  necessity  for  the  with- 
drawal of  a  juror  and  a  postponement  of  the  trial;  and  it  is 
not  dillicult  to  imagine  other  cases  in  which  a  similar  holding 
should  be  made.  In  this  case,  however,  we  take  notice  of  the 
fact  that  Lackawanna  county  constitutes  a  judicial  district, 
with  a  president  and  an  additional  law  judge.  The  adjudica- 
tion does  not  suggest  any  reason  why  the  term  could  not  have 
been  extended,  and  we  assume  that  there  was  none.  There 
was  therefore  no  case  of  necessity  presented  by  the  facts  stated 
in  the  adjudication,  nor  C,\  the  learned  judge  undertake  to 
j)ut  a  finding  of  such  necessity  upon  the  record.  The  adjudi- 
cation only  asserts  that  "  the  court  is  satisfied  that  it  is  useless 
to  detain  the  jury  longer,"  and  then  directs  their  discharge. 
This  order  was  a  mistake.  It  was  made  in  disregard  of  the 
protest  of  the  defendants.  They  were  in  jeopardy  when  the 
order  was  made,  and  its  effect  was  to  end  the  trial  and  the 
jeopardy  without  a  verdict  and  without  their  consent.  When 
they  were  again  called  upon  to  answer  and  subject  themselves 
to  the  jeopai'dy  of  a  trial,  they  had  a  right  under  the  constitu- 
tion to  say:  "We  have  been  once  put  in  jeopardy  for  this 
crime,  and  we  cannot  be  compelled  to  umlergo  the  same  peril 
a  second  time  for  the  same  otfensc."'  This  was  the  effect  of 
their  special  plea,  and  it  was  unanswerable.  Pelfer  v.  Com., 
15  Pa.  St.,  4(18;  McFadden  v.  Com.,  23  Pa.  St.,  12;  Alexamhr 
V.  Com..,  105  Pa.  St.,  1;  Ililands  v.  Com.,  Ill  Pa.  St.,  1;  G  Am. 
Cr.  R.,  .3159,  ai.l  note.  There  may  be  room  to  doubt  the  wis- 
dom of  the  constitutional  provision  in  its  present  form,  but 
there  is  no  room  for  discussion  as  to  its  effect.  The  justice  of 
sustaining  a  plea  of  former  acquittal  or  conviction  is  unques-. 
tioned  and  unquestionable;  but  a  plea  of  "once  in  jeopardy  " 
stands  on  narrower,  more  technical  and  less  substantial  ground. 
It  alleges  only  that  there  might  have  been  a  conviction  or  an 
acquittal  if  the  judge  trying  the  cause  had  not  made  a  mistake 
in  law  which  prevented  a  verdict.  It  is  of  no  consequence 
how  many  mistakes  he  makes  if  the  trial  results  in  a  conviction. 
The  mistidccs  can  be  corrected  on  a  writ  of  error,  and  the  defend- 
ant tried  over  again.  But  if  the  mistake  results  in  closing  the 
trial  without  a  verdict,  this  is  remediless.  The  court  that 
made  it  cannot  correct  it.    The  proper  court  of  review  cannot 


202 


AMERICAN  CRIMINAL  REPORTS. 


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correct  it.  The  consequence  is  that  a  defendant  charged  with 
taking  tiie  life  of  liis  fellow-man  goes  out  of  the  court  and  out 
of  the  reacli  of  justice  because  of  a  mistake  in  law,  made  after 
an  honest  and  jiainstaking  effort  to  be  right.  Such  was  the 
case  of  inlands  v.  Com.  Such  is  this  case.  But  the  constitu- 
tional provision  is  plain,  and  its  enforcemt't  by  the  courts  has 
been  uniform.  The  judgment  entered  upon  the  demurrer  was 
right,  therefore,  and  it  is  now  allirmed. 

Note.—  A  nolle  prosequi  to  an  information  will  not  operato  as  an  acquit- 
tal wiiere  no  jui'y  lias  been  iuipaiielecl  in  the  case.  People  v.  Kahn,  35 
N.  W.  R.  (Mich.),  88;  1  Whait.  Amcr.  dim.  Law,  ^  513,  and  cases  in  notes; 
State  V.  Lopi-z,  It)  IMo.,  255,  25(5;  State  v.  littst,  »1  Kan.,  .50'.);  «  Pac.  Rep., 
428;  Com.  v.  Wheeler,  2  JIass.,  173;  1  Bish.  Ciim.  Law,  f-.^  1 014-1 OIG. 

Sicoudindietiiieiit  while  Jlr^t  is  feudiiiy. —  It  is  well  settlcil  that  tiie  pend- 
ency of  an  indictment  irf  no  bar  to  a  second  indictment  for  the  same  olfense. 
Com.  V.  Drcic,  3  Cu.sit.,  279;  People  v.  Fisher,  14  Wend.,  1 ;  Smith  v.  Com., 
104  Pa.  St.,  :i3n;  United  States  v.  Xererson,  1  Mackey  (D.  C),  152. 

Former  jeoimrdii  must  he  speeiallij  pleaded. —  A  plea  of  former  acquittal 
or  conviction  must  be  specially  ple.ided,  and  must  set  out  tlio  record  and  al- 
le;.;e  tiiat  the  oflenHcs  are  the  same,  and  that  the  defendant  in  the  former 
suit  is  tiie  same  licrson  wiiois  defendant  in  the  latter.  Com.  v.  Chesleij,  107 
Mass.,  223;  niehles  v.  State,  iiS  A  hi.,  .538;  McQiiaid  v.  People,  3  Gilm.(Ill.), 
76;  1  nisli.  Cr.  Pr.,  1st  ed.,  g  .580;  3d  ed.,  g  814.  While  this  seems  to  be  (he 
rule,  would  a  court  be  justified  in  strictly  enforcinj:^  it  ?  We  tliink  uot  if 
justice  demanded  a  relaxation  of  it  in  the  particular  caee. 

Evidence  of  former  jeoi)(irdi/.—  EvU]once  must  be  introduced  to  prove 
identity  of  ollenses  and  parties.    liacco  v.  State,  37  Miss.,  357. 


State  v.  Emickv. 
(59  Vt.,  84.) 

ro>:)i'v  .reoPARDY:  Plea  in  abatement  —  Demurrer  —  Arson  —  Threats  — 

Character. 

\.  i-LEA  IN  ABATKMENT  —  CERTAINTY. —  A  plea  in  abatement  must  be  cer- 
tain to  every  intent,  and  stand  on  its  own  allef;atiuns,  unless  express 
reference  is  made  to  the  indictment.^ 

2.  Dltlicity  — General  DEMtKREU.—  Duplicity  in  a  plea  in  abatement  is 

reached  by  general  demurrer. 

3.  Once  in  jeopardy.—  During  the  trial  one  of  the  jurors  was  taken  sick, 

and  tiie  jianel  thereupon  discharged.    Held,  that  the  prisoner  had  not 
been  in  jeopardy. - 

•  See  note. 

2  See  inlands  v.  Com.,  6  Am.  Cr.  R.,  339,  and  note. 


STATE  V.  EMERY. 


203 


4.  Arson  —  Threats  —  Motive. —  The  respondent  wns  charged  with  burn- 

ing a  barn.  There  was  evidence  showing  tiircats  and  lioslility  towards 
one  liaving  cattle  in  it.  Held,  that  circumstantial  evidence  tending  to 
show  that  respondent  knew  that  such  person's  cattle  were  in  the  barn 
when  burned  was  admissible  to  dhow  motive. 

5.  CilAiiACTEK. —  Respondent's  right  to  prove  good  character  is  limited  to 

pertinent  general  reputation,  and  more  is  matter  of  favor. 

Exceptions  from  Oranfjo  County  Court,  Rowell,  J.,  pre- 
siding. 

Indictinont  for  arson  and  burning.  Pica  in  abatement,  to 
which  there  was  general  demurrer.  Demurrer  sustained,  plea 
adjudged  insullicient,  and  the  respondent  ordered  to  answer 
over,  to  all  of  which  the  respondent  excepted.  IJy  order  of 
the  couit  the  respondent  was  arraigned,  and  pleaded  not 
guilty.  A  trial  by  jury  was  begun,  during  which  one  of  the 
jurors  was  taken  sick,  and  the  i)anel  thereu])on  discharged. 
The  respondent  then  moved  to  be  discharged  for  that  ho  had 
been  once  in  jeopard}'.  Motion  denied,  to  which  the  respond- 
ent excepted.  At  the  next  term  a  jury  trial  was  had,  in  which 
the  resi)ondent  excepted  to  the  admission  and  exclusion  of  cer- 
tain evidence.  Verdict,  guilty.  The  allegations  and  facts 
sulliciently  appear  in  the  opinion, 

K  W.  Siii!t/i,  state's  attorney,  and  S.  B.  Hchard,  for  the  state. 
J.  II.   Wataou  and  Heath  ti)  Willard,  for  the  respondent. 

Ross,  J.  I.  The  demurrer  to  the  plea  in  abatement  was 
properly  sustained.  The  plea  is  wanting  in  the  necessary  cer- 
tainty for  a  good  plea  in  abatement,  in  not  alleging  several 
necessary  matters.  "Though  a  plea  in  bar  being  certain  to  a 
common  intent  is  good,  every  dilatory  i)lea,  or  in  abatement, 
must  be  good  to  every  intent."  4  l>ac.  Abr.,  51.  Tlie  indict- 
ment is  not  referred  to  nor  made  a  part  of  thejuea;  hence 
the  plea  must  stand  or  fall  upon  the  allegations  therein  named. 
There  is  nothing  in  the  plea  which  nuikes  it,  with  certainty,  a 
])lea  to  this  indictment.  The  oifensc  charged  in  the  indict- 
ment, referred  to  as  "said  indictment,"  is  not  named  in  the 
plea.  For  aught  that  is  alleged,  the  plea  referred  to  some 
other  indictment  pending  in  the  court  against  the  respondent. 
It  is  only  inferentially  that  the  court  can  know  that  it  is  a 
plea  to  this  indictment.     Again,  there  is  no  certain,  direct  al- 


irA-,H 


rr-?:T'':    '5 


204 


AMERICAN  CRIMINAL  REPORTS. 


legation  that  the  objectionable  grand  juror  acted  with  the 
panel  in  finding  the  indictment.  "What  is  alleged  on  tliat  sub- 
ject is  by  way  of  recital,  and  insuliicient.  LanJon  v.  Itohcrtx, 
20  Vt.,  2S0. 

The  allegation  that  the  ])anel  was  not  legally  selected,  qual- 
ified and  sunnnoned,and  did  not  constitute  a  legal  grand  jury, 
without  alleging  wherein  the  illegality  consists,  presents  a  con- 
clusion of  law  supported  by  no  traversable  facts,  and  is  wholly 
insuliicient  in  such  a  plea.  The  allegation  that  Daniel  Emery 
was  not  one  of  the  "judicious  men  of  the  county  "  is  similarly 
faulty.  The  allegation  that  he  was  "not  a  citizen  nor  a  legal 
voter  of  the  county"  lacks  the  certainty  required  in  such  a 
plea.  It  is  not  alleged  of  what  county  he  was  not  a  citizen  or 
legal  voter.  It  might  be  the  county  of  some  other  state  or 
country.  There  is  too  much  uncertainty,  and  too  much  left  to 
be  inferred,  in  all  these  jjarticulars  to  make  a  g  lod  plea  in- 
abatement.  Then  the  plea  is  open  to  the  objection  of  dui)lic- 
ity,  in  that  it  alleges  —  not  with  the  certainty  required  in  such 
a  plea,  but  suUiciently  to  present  an  issue  of  fact  —  the  non- 
citizenship  of  Daniel  Emery,  and  his  relation  by  consanguinity 
to  the  respondent.  Xon-citizenship  would  be  a  legal  disquali- 
fication of  the  alleged  objectionable  grand  juror,  and  so  would 
his  alleged  relation  to  the  respondent.  TIjc  respondent  con- 
tends that  the  defect  of  duplicity  cannot  be  taken  advantage 
of  by  general  demurrer  to  a  ))lea  in  abatement  even.  lie  cites 
sevei'al  authorities  to  support  this  contention.  The  (picstion  in 
the  authorities  cited  arose  in  civil  actions,  and  in  no  instance 
on  a  plea  in  abatement.  The  authorities  cited  sustain  the  con- 
tention that  in  that  class  of  pleas,  at  common  law,  duplicity 
could  be  reached  by  special  demuri-er  only  ;  but  in  reference  to 
pleas  in  abatement,  says  ;Mr.  Chitt\%  volume  1,  page  4(55,  of  his 
work  on  Pleading:  ''' If  the  plaintiff  demur  It  is  not  necessary 
to  assUjn  any  special  causes^  The  same  was  held  in  Landon 
V.  Roberts,  20  Vt.,  28(5.  In  speaking  of  duplicity  in  pleading, 
Judge  Isaac  F.  liedlield,  in  delivering  the  opinion  of  the  court, 
on  page  288  says:  "To  correct  any  misapprehension  on  the 
subject  it  may  be  well  to  say  that  all  defects  in  abatement 
may  now  bo  reached  by  general  demurrer."  In  Culver  v.  Balcfi, 
23  Vt.,  618,  it  is  held,  without  discussion,  that  duplicity  in 
pleas  in  abatement  may  be  reached  by  general  demurrer. 


Wha 
decii 
bad 
ous 
the 
11 
men 
near 
on 
res 


STATE  V.  EMERY. 


205 


"Whatever  the  rule  at  common  law,  we  think  it  is  settled  by  the 
decisions  in  this  state  that  duplicity  in  ])leas  in  abatement  is 
bad  when  encountered  by  general  demiivrer.  Hence,  for  vari- 
ous good  reasons,  the  county  court  sustained  the  demurrer  to 
the  respondent's  plea  in  abatement. 

II.  After  the  panel  were  sworn,  and  the  trial  had  com- 
menced and  proceeded  until  the  respondent's  evidence  was 
nearly  in,  one  of  the  jurors  was  taken  sick,  and  unable  to  go 
on  with  the  trial.  The  jurj-  thereupon  were  discharged.  The 
respondent  then  moved  to  be  discharged  from  further  answer- 
ing the  indictment,  for  that  he  has  once  been  put  in  jeopardy 
thereon.  To  the  denial  of  this  motion  the  respondent  excepted. 
Tliere  was  no  error  in  the  denial.  The  books  speak  of  a  jeop- 
ardy of  a  prisoner  commencing  v.'hen  the  jury  are  sworn  and 
are  charged  with  his  trial.  His  jeopardy,  then,  arises  from 
the  fact  that  the  court  and  the  jury,  and  a  full  tribunal,  are 
fully  organized,  have  taken  the  prisoner  in  charge  and  have 
entered  upon  the  trial,  which,  if  nothing  intervenes,  may  re- 
sult in  an  acquittal  or  conviction.  But  in  the  event  the  jury, 
or  court,  or  prisoner,  in  the  ])rogress  of  the  trial,  become  un- 
able to  proceed  with  the  trial,  his  jeopardy  at  once  ceases.  If 
it  were  known  when  the  trial  was  entered  upon  that  the  judge 
would  bo  stricken  down  or  die,  so  that  there  would  be  no  com- 
petent court  to  finish  the  trial,  or  that  the  panel  would  become 
disqualified  by  the  sickness  or  death  of  one  of  the  jurors,  or 
that  the  jury  would  be  unable  to  find  a  verdict,  or  that  the 
respondent  would  be  unable  to  proceed  with  the  trial,  because 
of  sickness  or  escape  from  custody,  the  respondent  would  not 
be  put  in  peril  or  jeopardy  by  such  commencement  of  the  trial. 
The  jeopardy  of  the  respondent  by  the  commencement  of  such 
trial  is  dependent  upon  the  presumption  that  the  tribunal  will 
continue  legall}*^  organized,  wich  the  respondent  in  charge,  to 
the  end  of  the  trial,  and  in  the  end  pronounce  a  valid  judgment 
for  or  against  the  respondent.  In  case  some  matter  occurs  in 
the  course  of  the  trial  which  conclusively  rebuts  this  presump- 
tion, it  also  rebuts  the  conclusion  or  presumption  of  the  jeop- 
ardy of  the  prisoner  by  reason  of  the  commencement  of  the 
trial.  If  the  respondent  takes  the  case  to  the  higher  courts 
on  exceptions,  and  the  trial  is  found  erroneous,  and  a  new  trial 
granted,  it  was  never  heard  that  he  could  not  be  retried  be- 


206 


AMERICAN  CRIMINAL  REPORTS. 


k'.  ''Si 


cause  ho  had  been  onco  in  jeopardy  on  the  same  charge.  Yet, 
on  the  respondent's  contention,  lie  was  in  jeopardy  the  moment 
the  jury  were  duly  charged  with  his  trial,  and,  whatever  might 
intervene  to  prevent  a  legal  judgmentof  acquittal  or  conviction, 
he  could  not  be  I'urlher  tried,  because  ho  liad  onco  been  in 
jeopardy  on  the  same  charge. 

State  V.  Clutnipcaii,  52  Yt.,  313,  is  full  authority  that  no  snch 
doctrine  prevails  in  this  state,  and  for  the  action  of  the  county 
court  in  holding  the  respondent  for  full  trial. 

III.  There  was  circumstantial  evidence  tending  to  show  that 
the  respondent  knew  that  Harry  Emery  owned  the  cattle 
burned.  The  respondent's  only  exception  to  the  testimony  to 
show  Harry  Emery  owned  the  cattle  is  that  it  must  be  found 
directly,  and  not  by  inference,  that  the  re8i)ondent  knew  he 
owned  them.  If  it  is  meant  by  the  exception  that  the  proof 
must  come  from  a  living  witness  on  the  stand,  instead  of  from 
circumstances  tending  to  show  such  knowledge,  it  is  without 
foundation.  Circumstantial  evidence  may  bo  of  the  most 
forcible  and  reliable  kind,  fully  equal  to  that  given  by  a  wit- 
ness. If  it  be  meant  that  the  circumstances  relied  upon  Avero 
not  potent  and  weighty  to  show  such  knowledge,  it  furnishes 
no  just  ground  of  exception.  It  was  not  for  the  court  to  pass 
upon  the  weight  to  be  given  to  the  circumstances  adduced.  It 
was  only  called  upon  to  determine  whether  they  had  a  legiti- 
mate teiulency  to  show  such  knowledge.  It  was  the  i)rovinco 
of  the  jur\'  to  detei'mine  their  weight  and  potency.  This  ex- 
ception cannot  be  sustained. 

IV^.  The  only  other  exception  now  relied  upon  is  to  the  re- 
fusal of  the  court  to  allow  Frank  Wilton,  who  had  testified 
that  he  had  known  the  respondc  '  four  years,  and  had  heard 
no  evil  reports  ngainst  him,  to  be  asked  whether  or  not  he  had 
been  an  orderly,  industrious  citizen.  The  rule  in  regard  to  the 
admission  of  evidence  of  general  good  reputation  and  charac- 
ter is  stated  in  1  Best,  Ev.,  480,  as  follows:  "  It  is  competent 
to  him  to  defend  himself  by  proof  of  previous  good  character, 
reference  being  had  to  the  nature  of  the  charge  against  him; " 
quoting  from  1  rhil.  Ev.  (10th  ed.),  502:  <-0n  a  charge  for 
stealing  it  would  be  absurd  to  inquire  into  the  prisoner's  loy- 
alty or  humanity;  or,  on  a  charge  of  high  treason,  it  would 
be  equally  absurd  to  inquire  into  his  honesty  and  punctuality 


STATE  V.  EMERY. 


207 


in  private  dcalinfTs.  .  .  .  The  inquiry  should  be  to  liis  gcn- 
t'lrtl  ehariictur  among  those  who  have  known  him,  with  a  view 
of  showinfT  that  his  general  reputation  for  honesty  is  such  as 
to  rcMuler  unlikt.'ly  the  conduct  imputed  to  him;  and  even  the 
individual  opinion  of  a  witness,  founded  upon  his  own  personal 
experience  of  the  <lis|)csition  of  the  accused,  is  inadmissible." 
Quoting  again  from  riiil.  Ev. :  "It  fre<iucntly  occurs,  indeed, 
that  witnesses,  after  speaking  to  the  general  opinion  of  the 
prisoner's  character,  state  tlieir  personal  experience  and  opinion 
of  his  lionesly;  but,  when  this  statement  is  admitted,  it  is 
rather  frotn  favor  to  the  prisoner  than  strictly  as  evidence  of 
his  general  cliaracter.''  The  authorities  cited  by  the  respond- 
ent's counsel,  when  carofidly  read,  are  not  in  condict  with  the 
above  rule,  but  support  it.  By  this  rule  the  court  properly 
excluded  tlie  oH'orcd  cviilence.  The  witness  had  already  tes- 
tified to  the  general  o|)inion  in  regard  to  the  respondent's 
character.  Ti;e  oH'cred  testimony  called  for  the  witness'  own 
knowledge,  not  that  of  general  opinion;  besides,  it  had  no  par- 
ticular relation  to  the  crime  charged.  Though  many  judges, 
as  a  matter  of  favor,  might  have  admitted  it,  the  respondent 
was  not  entitled  to  it  as  a  matter  of  right. 

The  respondent's  exceptions  are  unsustained,  and  judgment 
rendered  that  he  takes  nothing  therebv. 

Note.—  See  inlands  v.  Com.,  Ill  Pa.  St..  1  (0  Am.  Cr.  R.,  339,  and  note). 

Former  cotn-ictioii  on  vohmlary  complaint  of  dvfemlunt. —  A  I'onucr con- 
viction for  iiitoxiciition,  reinkivd  by  a  justice  of  the  jioace  against  one  on 
his  own  coin])laJnt,  is  not  a  bar  to  a  prosocution  previoiislj'  instituted  by 
the  state's  attorney  for  the  same  offense,  although  tlie  fine  is  determined  by 
the  statute.  A  formal  complaint  is  necessary,  in  Vermont,  to  confer  juris- 
diction on  the  magistrate.  Slate  v.  Wakefield,  CO  Vt.,  618.  See,  also,  4 
Am.  Cr.  R.,  830, 

Mnrder  —  Inx-olnntanj  manxhmghter. —  Defendant  was  indicted  for  in- 
voluntary manslaughter.  When  called  upon  to  plead  to  the  indictment  he 
fded  a  special  plea,  setting  forth  that  he  had  been  indicted  and  tried  in  the 
same  court  upon  the  charge  of  murder;  that  upon  such  previous  trial  he 
had  been  convicted  of  murder  in  the  first  degree;  that  this  had  been  re- 
versed by  the  supreme  court,  and  that  lie  had  been  discharged  from  said 
indictment;  that  the  indictment  for  involuntary  manslaughter  involves  the 
same  facts  and  circumstances  as  were  involved  in  the  charge  of  murder; 
and  that  this  last  c'-arge  was  for  the  same  offense  of  which  he  had  been 
discharged.  To  this  plea  the  commonwealth  demurred,  and  the  court  be- 
low sustained  the  demurrer.    Held,  that  this  was  correct,  and  that  the  trial 


208 


AMERICAN  CRIMINAL  REPORTS. 


for  murder  did  not  place  A.  In  jeopardy  of  a  conviction  for  involuntaiy 
ninnsiaunliter.    Hihimh  v.  Com.,  114  Pn.  St.,  878. 

"  Tlio  protection  extends  no  furtlier  tlian  tlie  ofTenso  cliarged  in  the  first 
indictment,  or  of  wliicli  lie  niiglit  have  been  convicted  under  it.  He  wiis 
not  in  Jeopiirdy  for  any  other  olTenKc.  The  first  indictment  churKcd  nuir- 
tler.  UndtT  it  he  niisht  have  been  convicted  oi'  ninrder  of  llie  lirwl  or 
second  deyree,  or  of  voluntary  nian!!ilauj;liter,  l)Ut  not  of  involuntary  nian- 
sliui^liter.  Tlu!  latter  offense  is  a  misdemeanor.  It  nuist  be  charged  as 
Hucli,  and  cannot  be  included  in  an  indictment  char^inR  felonious  homiciilc, 
oxceijtiny;  in  the  case  of  an  indictment  for  voluntary  uianslaUKhter,  where 
it  may  Ik^  joii:  d  by  force  of  the  act  of  Hist  March,  1800.  \Vitlivr»  v.  Com., 
41  Pa.  St.,  V>\').  It  follows  that,  when  the  itlaintilf  was  put  upon  his  trial 
for  murder,  he  was  placed  in  no  jeopardy  of  a  conviction  for  involuntary 
manslaughter."    Ibid. 


ant 

nssci 

thirl 

ing 

the 

jnrvl 


»! 


i 


EoniNsoN  V.  State. 
(23  Tex.  App.,  315.) 
FOUMEU  JEOX'AIIDY. 

1.  Inforsi Ai.  VERDICT  —  CouRT  MAY  SET  ASIDE.—  Trial  courts  have  the 

power  to  reject  an  informal  or  illegal  verdict,  and  such  a  verdict  can- 
not operate  to  acquit  uidcss  the  jury's  intention  to  aci]uit  is  apparent. 
Likewise,  informal  verdicts  niaj'  be  amended  under  the  direction  of 
the  court. 

2.  New  trial  —  Effect. —  Tlie  award  of  a  new  trial  because  of  an  informal 

or  illegal  venlict  places  the  case  in  tlio  same  condition  as  if  no  trial 
had  been  hail. 

3.  Practice  —  Former  jeopardy.— Neither  jeopardy  nor  former  acquit- 

tal are  such  pleas  as  can  be  iiiterpoaed  by  an  accused  at  a  subsequent 
trial,  upon  his  showing  that  his  conviction  on  his  former  trial  was  set 
aside  because  of  an  illegal  verdict. 

4.  The  failure  of  the  jury  to  pass  upon  the  pleas  of  jeopardy  and  former 

accjuittal,  in  the  absence  of  anj-  supporting  proof,  cannot  operate  to 
the  juejudice  of  the  accused,  and  therefore  becomes  imuniterial. 

Appeal  from  District  Court,  Bexar  Count}'. 
The  facts  are  stated  in  the  opinion  of  the  court. 

No  brief  for  appellant. 

Davidson,  assistant  attorney-general,  for  the  state. 

Hurt,  J.    This  was  a  conviction  for  the  offense  of  robbery, 
in  which  there  were  two  trials.     On  the  first  trial  the  defend- 


»|4I 


ROBINSON  V.  STATE. 


209 


ant  plentlod  guilty,  and  was  convicted  of  "  thoft  of  1^20,  and 
assessed  his  ))unislimcnt  at  confinement  in  the  pcnitontiary  for 
tiiirty  years."  The  foreman  of  the  jury  requested  the  presid- 
ing judge  to  have  the  verdict  put  in  proper  form;  whereupon 
the  district  attorney  wrote  the  following  verdict:  "  We,  the 
jury,  find  the  defendant  guilty  of  robbery,  as  charged  in  the 
indictment,  and  assess  his  punishment  at  tliirty  3'ears'  confine- 
ment in  the  state  penitentiary."  This  verdict,  so  amended, 
was  signed  by  the  foreman,  and  was  read  to  the  jury,  they 
answering  that  it  was  their  verdict.  The  jury  was  then  polled, 
each  juror  returning  a  like  answer.  Appellant  objected  to 
the  verdict  being  thus  amended,  and  reserved  a  bill  of  excep- 
tions. A  new  trial  was  granted,  whether  at  the  request  of 
appellant  or  by  the  court  of  its  own  motion,  does  not  appear. 
Upon  the  second  trial  appellant  pleaded,  specially',  former  con- 
viction and  jeopardy. 

Do  the  above  facts  confer  upon  api)cllant  the  right  to  either 
of  these  pleas?  We  think  not.  If  there  was  no  authority 
to  amend  the  verdict,  under  the  facts  of  this  case,  then  judg- 
ment should  have  been  entered  upon  it,  unless  it  was  illegal. 

T1h3  verdict  found  the  defendant  guilty  of  theft,  anil  the 
punislunent  was  assessed  at  thirty  years'  confinement  in  the 
state  penitentiary.  The  puislnnent  was  illegal,  the  maximum 
being  ten  years  for  such  theft.  The  verdict  being  illegal, 
the  court,  of  its  own  motion,  had  the  right  to  set  aside  and  va- 
cate it. 

But  it  may  be  urged  for  appellant  that  the  jury  should  not 
have  been  dischai'ged,  but  should  have  l)een  ordered  to  retire 
and  consider  still  further  of  their  verdict.  An  informal  — 
and  with  greater  reason  an  illegal  —  verdict  may  be  rejected 
by  the  court,  and  will  not  operate  as  an  acquittal,  unless 
plainly  intended.  Afdon  v.  State,  41  Tex.,  39;  Allen  v.  State, 
2G  Ark,  :33;  2liii'j>hij  v.  Siate,  7  Col.,  516;  Imvnlr;/  v.  Cady, 
10  Neb.,  3S8.  We  have  been  proceeding  upon  the  theory  that 
the  first  verdict  could  not  be  amended.  But  we  are  clearly  of 
opinion  that  under  our  statute,  as  well  as  at  common  law,  it 
could.  Code  Grim.  Proc,  art.  028 ;  1  Bish.  Crim.  Proc,  ?§  1005, 
1013. 

The  court  having  the  authority  to  amend,  the  verdict,  as 
Vol.  VII -14 


-tmm 


210 


AMERICAN  CRIMINAL  REPORTS. 


amended,  was  legal,  and  the  case  stands  as  though  there  had 
been  no  informal  or  illegal  verdict. 

Under  these  conditions  the  appellant  was  granted  a  new 
trial,  and  upon  the  second  trial  pleaded  acquittal  and  jeopardy. 
There  is  nothing  in  the  record  to  support  either  plea;  and 
upon  motion  for  the  state  they  should  have  been  stricken  out. 
Hence  the  failure  of  the  jury  to  pass  upon  his  pleas  could  work 
the  defendant  no  injury. 

We  have  examined  the  other  grounds  assigned  as  errors, 
and  find  them  not  well  taken.     Affirmed. 


Commonwealth  v.  Arnold. 

(83  Ky.,  1.) 

Former  jeopardy:  Xew  trial  —  Constitutlonol  lau\ 

1.  New  trial  at  request  of  Accrsi;!>. —  Wlicro  a  lu-w  trial  is  granted 

to  one  who  has  been  convicted  of  inaiisian^litcr  under  an  indictment 
for  murder,  he  is  in  the  same  position  as  if  no  trial  had  been  had,  and 
may  be  again  tried  for  murder. 

2.  Constitutional  laav. —  The  legislature  lias  tlit>  ri;,dit  to  jirescribe  the 

terpT".  upon  which  one  who  has  been  convicted  of  crime  may  have  a 
ne\,  '  ial;  therefore,  section  270  of  the  Criminal  Code,  which  provides 
that  "  the  granting  of  a  new  trial  places  the  jiartics  in  the  same  posi- 
tion as  if  no  trial  had  been  had,"  is  not  unconstitutional. 

P.  W.  Hardin,  attorney -general,  Julward  W.  Ulnes  and  R. 
C.   Warrc7i.,  for  appellant. 

IF.  0.  Bradley  and  W.  A.  21orr<)W,  for  appellee. 


Judge  Pkyok  delivered  the  opinion  of  the  court. 

AV.  A.  Arnold  was  indicted  in  the  Garrard  circuit  court  for 
the  murder  of  one  Robert  Boyle,  and  when  tried  was  convicted 
of  munslaughter.  The  judgment  of  conviction  was  reversed 
and  a  new  trial  granted.  On  the  second  trial  the  accused  filed 
a  plea  in  bar  or  former  acquittal  as  to  the  charge  for  murder 
contained  in  the  indictment,  maintaining  that  the  conviction 
for  the  lesser  offense,  although  the  verdict  was  set  aside  at  his 
instance,  was  an  acquittal  of  the  greater  offense.     The  coui  i 


COMMONWEALTH  v.  ARNOLD. 


211 


below  so  held,  and  the  case  is  brought  to  this  court  by  the  at- 
torney for  the  state,  insisting  that  an  error  was  committed  by 
the  court  below  to  the  prejudice  of  the  commmonwealth  in 
overruling  the  demurrer  to  the  plea. 

Section  270  of  the  Criminal  Code  provides  that  "  the  grant- 
ing of  a  new  trial  places  the  parties  in  the  same  position  as  if 
no  trial  had  been  had.  All  the  testimony  must  be  produced 
jmew,  and  the  former  verdict  cannot  be  used  or  referred  to  in 
evidence  or  in  argument." 

Some  of  the  elementary  authorities,  sustained  by  numerous 
decisions,  establish  the  doctrine  that  one  indicted  for  murder 
and  found  guilty  is  protected  from  any  further  prosecution  for 
murder.  Bishop's  Criminal  Law,  vol.  1.  In  such  a  view  of 
tlie  question  we  cannot  concur.  Under  the  Criminal  Code  of 
this  state,  an  indictment  for  murder,  containing  but  the  one 
charge,  embraces  all  the  lesser  degrees  of  the  oifense,  or  wliich 
may  be  included  under  it;  and  tliis  case  may  be  considered  as 
it' there  were  several  counts,  charging  various  degrees  of  the 
same  offense.  The  Code  of  Practice  settles  this  question, 
unless  the  provision  referred  to  is  unconstitutional. 

It  is  manifest  that  by  the  reversal  of  tiie  judgment  of  con- 
viction and  the  granting  of  a  new  trial  there  is  no  verdict  or 
judgment  in  existence  acquitting  or  convicting  the  accused  of 
any  of  the  degrees  of  the  offense  with  which  he  stands  charged. 
The  legislature  has  provided  the  manner  in  wjiich  a  new  trial 
may  be  had  and  the  causes  for  which  it  may  be  gi-anted;  and 
when  a  conviction  is  had,  and  the  accused  sees  proper  to  ask 
for  a  new  trial,  we  see  no  constitutional  objection  in  recjuiring 
him  to  submit  to  the  conditions  im[)osed  \iy  the  statute.  It  is 
urged  that  such  a  ruling  compels  the  accused  to  submit  either 
lo  the  verdict  of  manslaughter  against  him  or  subject  iiiiuself 
to  a  trial  for  a  gret.i,er  offense.  AVhile  this  may  bo  true  lie 
stands  convicted,  and  is  relieved  from  the  verdict  of  guilty  on 
the  condition  that  he  consents  to  be  retried  on  the  charge  con- 
tained in  the  indictment.  There  is  no  injustice  or  hardship  in 
compelling  the  accused,  when  taking  advantage  of  the  i)rovis- 
ions  of  the  code  in  order  to  obtain  a  new  triiil,  to  submit  to 
the  provisions  imposing  the  conditions  upon  which  a  retrial  is 
awarded.  If  a  conviction  for  manslaughter  implies  an  acquit- 
tal of  the  higher  offense,  the  accused  on  liis  own  motion  has 


,mm' 


212 


AMERICAN  CRIMINAL  REPORTS. 


fpi 


asked  the  court  to  set  aside  the  verdict  from  which  this  impli- 
cation of  innocence  or  acquittal  of  the  graver  offense  arises. 
The  conviction  no  longer  exists,  and  when  set  aside  it  cannot 
be  used  as  evidence  or  pleaded  in  bar  of  the  indictment.  There 
is  neither  verdict  nor  judgment  of  guilt  as  to  any  degree  of  the 
offense. 

The  accused  when  placed  on  trial,  the  court  having  jurisdic- 
tion of  the  case  and  the  indictment  sufficient  in  substance  to 
sustain  a  conviction,  having  selected  a  jyivy,  impaneled  and 
sworn,  was  entitled  to  a  verdict  that  would  bar  any  other 
prosecution.  In  this  case  a  verdict  was  rendered,  and  the  ac 
cused,  not  satisfied,  has,  on  his  own  motion,  caused  that  ver- 
dict to  be  set  aside.  In  such  a  case  the  "  accused  may  again 
be  put  upon  trial  upon  the  same  facts  before  charged  against 
him,  and  the  proceedings  had  will  constitute  no  protection." 
Cooley's  Constitutional  Limitations,  p.  401,  5th  ed. 

The  same  author  says:  "  If  a  prifoner  is  acquitted  on  some 
of  the  counts  in  an  indictment  and  convicted  on  others,  and  a 
new  trial  is  obtained  on  his  motion,  he  can  be  put  upon  trial 
a  second  time  on  those  only  on  which  he  was  before  con  viced." 
What  effect  would  be  given  to  separate  verdicts  on  each  -jount 
in  one  indictment,  the  record  showing  an  acquittal  as  to  one 
count,  and  a  motion  to  grant  a  new  trial  as  to  the  count  upoii 
which  the  accused  was  found  guilty,  is  not  necessary  to  be 
determined. 

A  verdict  of  guilty  of  manslaughter  implies  that  the  jury 
did  not  believe  the  accused  guilty  of  murder;  still  there  is  but 
one  homicide  committed,  and  who  is  the  ofFender  and  the  de- 
gree of  iho  homicide  has  not  been  ascertained.  There  is  no 
record  showing  that  the  accused  committed  the  offense,  or  any 
fact  reducing  the  offense,  if  committed,  from  mui-der  to  man- 
slaugliler.  The  law  presumes  the  accused  innocent  until  his 
guilt  is  shown,  and  it  devolves  on  the  state  to  show,  although 
the  case  has  once  been  tried,  that  the  accused  committed  the 
offense  and  the  circumstances  attending  it.  There  was  noth- 
ing in  the  record,  after  the  new  trial  had  been  granted,  show- 
ing that  any  homicide  had  been  committed;  and  if  there  is  an 
implied  acquittal  of  the  offense  charged  in  the  indictment,  why 
is  not  the  accused  entitled  to  an  acquittal  of  all  the  lesser  de- 
grees?   A  verdict  of  acquittal  on  an  indictment  for  murder  is 


EX  PARTE  STANLEY. 


213 


a  bar  to  any  prosecution  for  manslaughter,  and  we  perceive 
no  valid  reason  for  holding  that  the  granting  of  a  new  trial  in 
this  case  determined  in  effect  that,  if  the  accused  did  commit 
the  homicide,  it  was  only  done  in  sudden  heat  and  passion. 
The  verdict  is  an  entirety,  and  we  have  no  doubt  as  to  the 
power  of  the  legislature  to  prescribe  for  the  accused  the  terms 
upon  which  he  may  have  a  second  hearing.  The  court  below 
should  have  sustained  the  demurrer  to  the  plea.  State  v.  Behi- 
mer,  20  Ohio  State,  572 ;  Morris  v.  State,  1  Blackford,  37 ;  Liv- 
ingston  v.  Commonwealth,  14  Grattan,  592. 

In  Veach  v.  The  State,  60  Indiana,  291,  the  statute  of  that 
state  regulating  criminal  proceedings  contains  the  same  pro- 
vision with  reference  to  new  trials  found  in  our  Code  of  Prac- 
tice, and  it  was  held,  where  the  accused  had  been  convicted  of 
manslaughter  and  a  new  trial  granted  him,  that  he  might,  upon 
the  new  trial,  be  convicted  of  murder. 


m 


I 


Ex  PAKTE  Stanley. 


?til 


(25  Tex.  App.,  372.) 
FoaiTiVE  FROM  JUSTICE:  Extradition  Warrant,  validity  of. 


1.  Sufficiency  of  warrant  — Extradition.— A  warrant  issued  by  the 

state  executive  for  the  apprehension  and  extradition  of  fugitives  from 
justice  is  sufficient  wlien  it  recites,  without  setting  out  in  full,  the  af- 
fidavit on  which  it  is  based.' 

2.  Recitals  in  warrants  —  Certified  copy  of  affidavit,— The  recital 

in  an  extradition  warrant  that  tlie  demand  for  the  arrest  of  tlie  fugi- 
tive was  accompanied  by  a  copy  of  the  affidavit  on  wliich  it  vv'as  based, 
"  duly  certified  as  authentic,"  is  equivalent  to  a  recital  that  the  copy 
was  "  certified  as  authentic  by  the  governor  "  of  the  state  who  made 
the  demand,  as  it  could  not  have  been  duly  certified  by  any  other  au- 
thority. 
8.  Validity  op  warrant  —  Alleging  commission  op  crime.— It  is  not 
essential  to  the  validity  of  an  extradition  warrant  that  it  sho  Id  show 
that  the  crime  with  which  the  fugitives  are  charged  in  the  indictment, 
recited  in  the  demand,  is  a  crime  by  the  law  of  the  demanding  state.^ 

•  See  note. 


i?;i 


IK-. 


V. 

PI 

IP 

Ifl 


214 


AMERICAN  CRIMINAL  REPORTS. 


■■•^■^.•V:l 


.y  r:"3'3 


Appeal  from  District  Court,  Bexar  County;  Hon.   George 
II.  Noonan,  Judge. 

Teel  d;  Ilaltom,  for  relator. 

W.  L.  Davidson,  assistant  attorney-general,  for  the  state. 

WiLLsoN,  J.  Appellant  was  arrested  by  virtue  of  the  fol- 
lowing warrant  issued  by  the  governor  of  Te\as,  to  wit:  "  The 
State  of  Texas:  To  all  and  singular  the  sheriffs,  constables  and 
other  civil  officers  of  the  said  state:  Whereas,  it  has  been  made 
known  to  me  by  the  governor  of  the  state  of  California,  that 
William  II.  M.  Stanley  and  Bertha  Stanley  stand  charged,  by 
proper  affidavit,  before  the  proper  authorities,  with  the  crime 
of  obtaining  money  under  false  pretenses,  committed  in  said 
state,  and  that  the  said  defendants  have  taken  refuge  in  the 
state  of  Texas;  and  whereas,  the  said  govei'nor,  in  pursuance 
of  the  constitution  and  laws  of  the  United  States,  has  demanded 
of  me  that  I  cause  the  said  fugitives  to  be  arrested  and  deliv- 
ered to  James  AV.  Gillen  and  John  Parrott,  who  are,  as  is  sat- 
isfactorily shown,  duly  authorized  to  receive  them  into  custody 
and  convey  them  back  to  said  state;  and  whereas,  said  demand 
is  accompanied  by  a  copy  of  said  affidavit,  duly  certihed  as  au- 
thentic :  Now,  therefore,  I,  L.  S.  Boss,  governor  of  the  state  of 
Texas,  by  virtue  of  the  authority  vested  in  me  by  the  consti- 
tution arid  laws  of  this  state,  and  of  the  United  States,  do  issue 
this,  my  warrant,  commanding  all  sheriffs,  constables  and 
other  civil  officers  of  this  state  to  arrest,  and  aid  and  assist  in 
arresting,  said  fugitives,  and  deliver  them,  when  arrested,  to 
the  said  agents,  in  order  that  they  may  be  taken  back  to  the 
said  state,  to  be  dealt  with  for  said  crime.  In  testimony 
whereof,"  etc. 

Appellant  applied  to  the  Hon.  George  II.  Noonan,  judge  of 
the  thirty-seventh  judicial  district,  for  the  writ  of  haheas  cor- 
pus, which  was  granted  by  said  judge,  and  was  heard  by  him 
in  term  time,  and  appellant  was  remanded  to  the  custody  of 
respondent,  the  sheriff  of  Bexar  county,  who  had  arrested  him 
by  virtue  of  said  warrant.  From  said  judgment  appellant 
prosecutes  this  appeal,  and  insists  that  he  should  be  discharged 
upon  the  following  grounds:  (1)  Because  the  warrant  of  arrest 
does  not  set  out  the  pretended  affidavit  upon  which  the  de- 


nial 

gov 

not 

the 

arr 

for 

tice 

not 


EX  PARTE  STANLEY. 


215 


mand  from  the  governor  of  the  state  of  California  upon  the 
governor  of  Texas  is  based,  (2)  The  warrant  of  arrest  does 
not  state  that  it  is  based  upon  an  affidavit,  certified  to  be  au- 
thentic by  the  governor  of  California.  (3)  The  warrant  of 
arrest  does  not  show  that  applicant  fled  from  the  state  of  Cal- 
fornia,  nor  does  it  state  that  applicant  has  fled  from  the  jus- 
tice of  the  state  of  California.  (-1:)  The  warrant  of  arrest  does 
not  state  that  the  applicant  has  fled  to  the  state  of  Texas, 
or  has  taken  refuge  in  the  state  of  Texas.  (5)  The  warrant  of 
arrest  does  not  state  or  show  that  obtaining  money  under  false 
pretenses  is  punishable  by  the  laws  of  the  state  of  California. 
We  will  dispose  of  these  grounds  in  the  order  in  which  they 
are  presented. 

It  was  (not)  essential  to  the  validity  of  the  warrant  that  it 
should  set  out  in  full  or  be  accompanied  by  the  indictment  or 
affidavit  u|)on  which  it  is  based.  Nichols  v.  Corndivs,  7  Ind., 
611;  liohiihson  V.  Flandevs,  2i)  Ind.,  10;  People  v.  Phil'ertun, 
77  K  Y.,  245;  People  v.  Donohne,  84  N.  Y.,  43S.  In  Ee parte 
Thornton^  9  Tex.,  035,  this  question  is  referred  to,  and,  while 
the  court  did  not  decide  it,  it  intimated  that  the  indictment  or 
affidavit  should  bo  set  out  in  full  in  the  warrant;  citing  Clai'Us 
Case,  9  Wend.,  212,  and  SmWi's  Case,  3  McLean,  121.  Upon 
examination  of  those  cases,  we  do  not  understand  eitiier  of 
them  as  supporting  the  view  intimated  by  thi  court  in  Thorn- 
ton's Case.  Mr.  Church,  in  his  work  on  Habeas  Corpus,  says: 
*'  A  warrant  for  the  arrest  and  return  of  a  fugitive  criminal  must 
recite  or  set  forth  the  evidence  necessary  to  authorize  the  state 
executive  to  issue  it;  and  unless  it  does  it  is  illegal  and  void." 
He  cites  in  support  of  his  text  IJoo  Woon''s  Case,  18  Fed.  Hep., 
898.  That  case  fully  supports  the  text,  and  cites  as  authority 
Smithes  Case,  3  McLean,  121,  and  Thornto?i's  Case,  9  Tex.,  (535. 
In  JJoo  Woon^s  Case  the  warrant  neither  recited  nor  set  forth 
the  evidence  upon  which  it  was  issued,  and  for  that  laason 
was  held  invalid. 

In  the  case  we  are  considering  the  warrant  recites,  but  does 
not  set  forth  in  full,  the  affidavit  upon  which  it  is  issued.  We 
have  found  no  decision  or  authority  which  requires  that  the 
warrant  should  set  forth  the  evidence  in  full,  except  the  inti- 
mation referred  to  in  2Vior)don^s  Case.  The  correct  rule  is,  we 
think,  laid  down  in  Donohue's  Case,  84  N.  Y.,  438,  in  a  sylla- 


Mt 


216 


AMERICAN  CRIMINAL  REPORTS. 


'i 


bus,  as  follows:  "  "When  the  papers  upon  which  a  warrant  of 
extradition  is  issued  are  withheld  by  the  executive  the  warrant 
itself  can  only  be  looked  to  for  the  evidence  that  the  essential 
conditions  of  its  issuance  have  been  complied  with,  and  it  is 
sufficient  if  it  recites  what  the  law  requires." 

The  second  ground  is  not,  we  think,  a  substantial  one.  The 
warrant  states  that  jeraand  of  the  governor  of  California 
for  the  fugitives  ,v  uc  mpanied  by  a  copy  of  said  affidavit, 
duly  certified  as  uuLUentio."  It  would  have  been  a  literal 
compliance  with  tbo  statute  if  H  had  stated  that  said  copy  was 
certified  as  authentic  b^  the  ^  >  ornor  of  the  state  of  Califor- 
nia. But  the  statement  that  IL  v.ms  "duly  certified  as  au- 
thentic" must  mean  that  it  was  certified  according  to  law; 
that  is,  that  it  was  certified  by  the  governor  or  chief  magistrate 
of  the  state  of  California,  as  it  could  not  have  been  duly  certi- 
fied by  any  other  authority     K.  S.  U.  S.,  §  5278. 

The  third  and  fourth  grounds  are,  we  think,  untenable. 
While  there  is  no  direct  statement  in  the  warrant  that  the  ap- 
pellant fied  from  the  state  of  California,  or  from  the  justice  of 
that  state,  to  the  state  of  Texas,  and  had  taken  reft^ge  in  the 
latter  state,  it  states  facts  which  clearly  and  unmistakably 
show  that  he  was  a  fugitive  from  justice  from  the  state  of 
California  to  the  state  of  Texas  within  the  meaning  of  the 
constitution  and  the  statute.     Spear,  Ext.,  273. 

The  fifth  and  last  ground  is  not  a  valid  one.  It  is  not  re- 
quired that  the  warrant  should  show  that  the  crime  charged  in 
the  indictment  or  affidavit  is  a  crime  by  the  law  of  the  de- 
manding state.  Spear,  Ext.,  287  et  seq.  We  are  of  opinion 
that  the  warrant  is  in  substantial  compliance  with  the  statute. 
No  form  for  such  a  warrant  is  prescribed  by  law,  and  when  it 
shows  upon  its  face  with  reasonable  certainty,  as  does  the 
warrant  in  question,  that  the  essential  prerequisites  to  its  issu- 
ance have  been  com|)lied  with,  it  must  be  held  prima  fac'u 
valid. 

It  appears  by  a  bill  of  exception  that  the  respondent,  over 
the  objection  of  the  applicant,  read  in  evidence  a  copy  of  an 
affidavit  made  in  California  charging  applicant  with  obtainiiig 
money  under  false  pretenses.  This  affidavit  was  not  a  part  of 
the  respondent's  return ;  was  not  authenticated  as  evidence ; 
was  not  shown  or  claimed  to  be  the  evidence  upon  which  the 


it  11 


STATE  V.  MARCHANT. 


217 


warrant  was  issued.    It  was  error  to  admit  it  in  evidence,  but 
error  which  cannot  operate  to  discharge  the  applicant. 

The  judgment  appealed  from  is  in  all  things  atfirmed,  and 
it  is  adjudged  that  the  appellant  pay  the  costs  of  this  appeal. 

Note.— See  Ex  parte  Reggol,  5  Am.  Cr.  R.,  218,  and  note,  in  which  the 
law  and  procedure  ai'e  fully  discussed. 


State  v.  Marchant. 

(15  R.  I.,  539.) 

Gamblinq:  Indictment — Person  temporarily  in  control. 

1.  Indictment  — Form.— Under  Public  Statutes  of  Rhode  Island,  chapter 

346,  section  5,  defendant  was  indicted  for  keeping  a  gambling  place. 
A  charge  in  the  indictment  that  on  July  4tli  the  defendant  kept  a 
room,  and  suffered  it  to  be  kept,  for  gambling,  held  to  mean  that  he 
kept,  and  suffered  it  to  be  kept,  for  gambling,  on  the  day  alleged,  and 
the  words  "  then  and  there  "  were  unnecessary. 

2.  Temporauy  contkol  of  place.— Evidence  showed  that  one  S.  was 

lessee  and  keeper  of  the  room  mentioned  in  the  indictment,  and  that 
on  the  day  mentioned  he  went  out,  and  left  it  temporarily  in  charge 
of  the  defendant.  Held,  if  the  defendant  was  in  charge  and  control 
of  the  room,  for  the  purpose,  on  his  part,  of  its  being  used  as  a  gam- 
bling-ruom,  it  was  enough,  even  though  the  room  was  not  actually  so 
used  while  he  was  in  charge  of  it.' 

Exceptions  to  the  Court  of  Common  Pleas,  Providence 
County. 

Walte?'  F.  Angell,  assistant  attorney-general,  for  plaintifif. 
Charles  II.  Page  and  Franklin  P.  Owen,  for  defendant. 

Per  Curiam.  The  defendant  was  indicted  in  the  court  of 
common  pleas  under  Public  Statutes  of  llhode  Island,  chapter 
'24(5,  section  5,  as  follows:  ''Sec.  5.  Every  person  who  shall 
keep,  or  suffer  to  be  kept,  any  building,  room,  booth,  shed, 
tent,  arbor,  or  any  other  place  in  any  city  or  town  in  this  state, 
or  in  any  vessel,  boat  or  raft  upon  any  of  the  waters  of  Narra- 
gansett  bay,  to  bo  used  or  occupied  for  the  purpose  of  gam- 

'  See  note. 


\i-: 


Km, 


218 


AMERICAN  CRIMINAL  REPORTS. 


bling  or  playing  at  any  game  or  games  of  chance  of  any  kind 
whatsoever,  for  money  or  other  valuable  consideration,  or  shall 
keep,  ex'hibit,  or  suffer  to  bo  kept  or  exhibited,  upon  his  prem- 
ises or  under  his  control,  any  cards,  dico-ui'ulu,  uo'.vls,  wheel  of 
fortune,  shuflle-board  or  billiard-table,  or  any  device,  imple- 
ment or  apparatus  wluitsoever,  to  be  used  in  gambling  or  play- 
injr  at  anv  ffaine  or  games  of  chance  for  money  or  other  valu- 
able  consideration,  or  who  shall  be  guilty  of  dealing  faro  or 
banking  for_  others  to  deal  faro,  or  acting  as  lookout,  game- 
keeper or  assistant  for  the  game  of  faro  or  any  other  gam- 
bling game  where  money  or  property  is  dependent  upon  the 
result,  shall  be  taken  and  held  to  be  a  comuion  gambler,  and 
shall  be  imprisoned  not  exceeding  two  years  or  be  lined  not 
exceeding  $5,000  nor  less  than  §500."  The  case  comes  before 
us  on  exceptions  for  alleged  errors  committed  by  said  court  in 
refusing  to  instruct  the  jury  on  the  trial  as  requested  by  the 
defendant,  and  also  for  overruling  the  defendant's  motion  in 
arrest  of  judgment.  We  will  consider  the  latter  exception 
first. 

The  indictment  contains  two  counts.  The  first  count 
charges  that  the  defendant,  on  July  4,  1S80,  with  force  and 
arms,  at  Pawtucket,  unlawfully  "did  keep,  and  suffer  to  be 
kept,  a  certain  room  to  be  used  and  occupied  for  the  purpose 
of  gambling  and  playing  at  games  of  chance  lor  money  and 
other  valuable  consideration,  whereby,"  etc.  The  second 
count  charges  that  the  defendant,  at  the  same  time  and  place, 
"unlawfully  did  keep  and  exhibit,  and  suffer  to  be  kept  and 
exhibited,  upon  his  premises  and  under  his  control,  tables, 
cards,  dice,"  etc.,  "to  be  used  in  gambling  and  playing  at 
games  of  chance,  whereby,"  etc.  The  defendant  directs  his 
argument  especially  against  the  second  count  as  being  the 
more  clearly  insufficient.  The  motion,  however,  cannot  be 
sustained  if  eitlier  count  is  good.  AVe  think  the  first  count  is 
good.  It  is  substantiall}^  in  the  language  of  the  statute.  The 
objection  of  the  defendant  is  that  the  charge  is  that  he  kept 
the  room  to  be  used  for  gambling,  without  alleging  that  he 
kept  it  to  be  then  and  there  used  for  gambling.  We  think, 
however,  that  the  charge  that  the  defendant,  on  the  4th  ol 
July,  did  keep  a  room,  and  suffer  it  to  be  kept,  to  be  used  for 
gambling,  means  that  he  kept  it,  and  suffered  it  to  be  kept,  to 


STATE  V.  MARCHANT. 


219 


be  used  for  gambling,  on  the  day  alleged,  and  that  the  words 
"then  and  there"  were  unnecessary.  Com.  v.  Btiyhee,  4  Gray, 
20C;  Com.  v.  Lauyhij,  14  Gray,  21;  Whiting  v.  State,  14  Conn., 

487. 

The  evidence  submitted  on  the  trial  of  the  indictment  went 
to  show  that  one  Frank  E.  Sulloway  was  the  lessee  and  keeper 
of  the  room  mentioned  in  the  indictment,  and  that  the  defend- 
ant was  there  with  othei's,  and  that  on  the  day  mentioned  in 
the  indictment,  tlie  defendant  and  others  being  present,  Sullo- 
way went  out,  and  left  the  room  temporarily  in  charge  of  the 
defendant.  The  instruction  requested  was  that  if  the  jury 
found  that  the  defendant  was  not  an  employee  of  Sulloway, 
but  was  left  temi)orarily  in  control  and  charge  of  the  room,  it 
was  necessary  for  the  jury  also  to  lind  that,  during  some  part 
of  the  time  when  the  defendant  was  so  in  control  and  charge, 
the  room  was  used  in  gambling  and  playing  at  a  game  or 
games  of  chance,  for  money  or  other  valuable  consideration, 
in  order  to  lind  the  defendant  guilty  as  charged.  We  do  not 
think  the  refusal  of  the  instruction  was  error,  for  we  are  of 
the  opinion  that  if  tlie  defendant  was  in  charge  and  control  of 
the  room  for  the  purpose,  on  his  part,  of  its  being  used  as  a 
gambling-room,  it  was  enough  to  nuike  him  guiltv  of  the  of- 
fense, even  though  the  room  was  not  actually  so  used  while  he 
was  in  charge  of  it.  State  v.  MiUer,  5  IJlackf.,  5(12.  The 
counsel  for  the  defendant  in  his  brief  argues  that  "the  jury 
must  be  satisfied  that  the  premises  were  kept  by  the  defendant 
for  tlie  purpose  of  being  used  in  gambling."  This  is  undoubt- 
edly true;  but  in  order  to  prove  this  it  is  not  necessary  to 
prove  that  they  were  actually  so  used. 

E.\ceptions  overruled  and  case  remanded  to  court  of  com- 
mon pleas  for  sentence. 


Note.—  Keeper  of  gaviing-table,  who  is. —  Under  code  of  Alabama  of  1876, 
section  4"208,  providing  a  penalty  against  "  any  person  who  keeps,  exhibits, 
or  is  interested  or  concerned  in  keeping  or  exhibiting,  any  table  for  gam- 
ing," defendant,  who  has  custody  of  a  table,  authority  over  its  use  and 
supervision  of  the  gaming,  is  a  keeper,  or  interested  or  concerned  in  keep- 
ing it,  within  the  meaning  of  the  code.     Bibb  v.  State,  84  Ala.,  13. 

Gnrniv(j-table,  tchat  is. —  Code  of  Alabama  of  1876,  section  4208,  forbidding 
the  keeping  of  "any  table  for  gaming  of  whatsoever  name,  kind  or  descrip- 
tion," includes  any  table  which  is  used  for  gaming,  without  regard  to  its 
appliances  for  any  particular  game.    Ibid. 


220 


AMERICAN  CRIMINAL  REPORTS. 


What  constitutes  an  inn.— A  house  at  which  trniisient  gupsts  as  well  as 
regular  boarders  are  entertained  is  an  inn,  though  not  hcensed,  and  a  room 
therein,  the  only  entrance  to  which  is  through  the  house,  and  wiiicli  is  let 
by  the  proprietress  to  a  tenant  who  cooks  and  eats,  as  well  as  sleeps,  there, 
is  part  of  the  inn,  within  the  meaning  of  code  of  Alabama  of  1880,  section 
4052,  which  prohibits  playing  cards  at  a  tavern,  inn  or  public  place.  Foster 
V.  State,  84  Ala.,  451. 

An  inn  is  a  house  of  entertainment  for  travelers,  being  synonymous  in 
meaning  with  hotel  or  tavern.  It  was  formerly  defined  to  mean  "a  house 
where  a  traveler  is  furnished  with  everything  which  he  has  occasion  for 
while  upon  his  way."  Thompson  v.  Laey,  3  Barn.  &  Aid.,  283;  People  v. 
Jones,  54  Barb.,  Oil.  But  this  definition  has  necessarily  been  modified  by 
the  progress  of  time  and  the  mutations  in  the  customs  of  society  and  modes 
of  travel  in  modern  times.  An  inn,  however,  was  always,  and  may  now, 
when  unlicensed,  be  distinguished  from  a  boarding-house,  the  guest  of 
which  is  under  an  express  contract,  at  a  certain  rate,  and  for  a  specified 
time;  the  right  of  selecting  the  guest  or  boarder,  and  fixing  full  terms,  being 
the  chief  characteristic  of  the  boarding-house  as  distinguished  from  an  inn, 
except  as  to  inns  or  hotels  specially  licensed  under  the  statute,  where  gen- 
eral contracts  with  guests  are  expressly  authorized.  Code  of  1880,  ^  1324  et 
seq.;  Willard  v.  Reinhardt,  2  E.  D.  Smith,  148;  McDanicIs  v.  Kobinson,  02 
Amer.  Dec,  580,  note.  Tliere  is  nothing  inconsijtent  or  unusual,  however, 
in  a  house  of  public  entertainment  having  a  double  character,  being  simul- 
taneously a  boarding-house  and  an  inn.  In  res|)ect  to  those  who  occupy 
rooms,  and  are  entertained  under  special  contract,  it  may  be  a  boarding- 
house;  and  in  respect  to  transient  persons,  who,  without  a  stipulated  con- 
tract, remain  from  day  to  day,  it  is  an  inn,  tavern  or  hotel.  Cromwell  r. 
Stephens,  2  Daly,  15,  24;  Chamberlain  v.  Masterson,  26  Ala.,  871. 


State  v.  Duogan. 


(15  R.  I.,  412.) 
Grand  jury  :  Plea  in  abatement. 

1.  Plea  in  abatement  to  drawing  op  grand  jury  — Requisites. — It  is 

the  duty,  not  of  the  city  council  of  Newport,  Rhode  Island,  but  of  the 
board  of  aldermen  of  said  city,  to  draw  the  grand  jurors  required  of 
it;  and  a  plea  in  abatement  to  an  indictment  "  that  one  of  the  grand 
jurors  was  not  drawn  by  the  town  council,  nor  by  the  city  council  of 
Newport,"  is  bad  upon  demurrer,  because  it  does  not  negative  the 
possibility  that  he  was  legally  drawn. 

2.  To  COMPETENCY  OF  GRAND  JURY.— A  plea  in  abatement  to  an  indict- 

ment that  one  of  the  grand  jurors  was  not  "qualified  to  vote  upon  any 
proposition  to  impose  a  tax,  or  for  the  expenditure  of  money  "  (the 
words  of  Pub.  St.  R.  I.,  ch.  200,  §  1),  is  a  bad  plea,  as  too  general. 


STATE  V.  DUGQAN. 


221 


lis 
tu 
A 

pa 

[';• 

In 

HO 

3r 


3.  Not  favored. —  Fleas  in  abatement  for  mero  defects  Jn  the  constitution 
of  the  grand  jury  are  generally  interposed  for  delay,  and  are  not  fa- 
vored, and  application  to  amend  should  be  refused. 

Indictment.    On  demurrer  to  plea  in  abatement. 

Edwin  Metcalf,  attorney -general,  for  the  state. 
Charles  Acton  Ives,  for  defendant. 

DuEFKE,  C.  J.  The  defendant  pleads  throe  pleas  in  abate- 
ment to  the  indictment.  The  first  plea  is:  "Because  one  of 
the  grand  jurors  who  participated  in  the  deliberations  of  the 
grand  jury  which  has  found  said  indictment,  and  who  was 
drawn  by  the  town  council  of  the  town  of  New  Shoreham  to 
serve  on  said  grand  jury,  to  wit,  Benjamin  S.  Babcock,  was  not, 
at  the  time  he  was  drawn,  as  aforesaid,  qualified  to  vote  upon 
any  i)roposition  to  impose  a  tax  or  for  the  exj)enditure  of  money 
in  said  New  Slioreham."  Tiie  second  plea,  pleaded  by  express 
leave,  is  to  the  same  effect,  except  that  it  applies  to  Isaac  A. 
Hart,  drawn  as  grand  juror  by  the  town  council  of  the  town 
of  Tiverton.  The  tliird  plea,  pleaded  by  express  leave,  is  "that 
one  of  the  grand  jurors  who  participated  in  the  deliberations 
of  the  grand  jury  which  has  found  said  indictment  was  not 
drawn  to  serve  upon  said  grand  jury  by  the  town  council  of 
any  of  the  towns  within  and  for  said  county  of  Newport,  nor 
by  the  city  council  of  the  city  of  Newport,  in  said  county,  nor 
was  the  said  Hall  summoned  to  serve  on  said  grand  jury  by 
writ  of  venire  coming  out  of  this  honorable  court,  nor  was  the 
said  Hall  upon  said  jury  by  virtue  of  any  legal  process  what- 
soever, but  improperly  intruded  himself  upon  said  jury,  and 
its  deliberations."     Tlie  state  demurs  to  tlic  pleas. 

The  ground  of  demurrer  to  the  first  two  picas  is  that  they 
are  too  general,  in  that  they  do  not  allege  in  what  respect  the 
persons  named  are  not  qualified,  and  because  they  may  involve 
simply  a  question  of  law.  We  think  the  objection  is  valid  for 
both  reasons.  "Every  special  plea,"  says  Gould,  " in  which 
matter  of  fact  and  matter  of  law  are  so  bh'nded  that  they  can- 
not be  separated,  is  ill."  Gould,  PI.,  ch.  (i,  §  97.  If  the  defend- 
ant had  pleaded  that  the  persons  named  were  not  duly  quali- 
fied to  serve  as  grand  jurors,  without  more,  tliere  could  be  no 
doubt  that  the  pleas  would  be  bad,  because  they  would  blend 


223 


AMERICAN  CRIMINAL  REPORTS. 


II 


^/vi 


matter  of  fact  and  matter  of  law  intlistinguishabl}"  togctlior. 
If  such  pleas  were  traversed,  it  nii<flit  happen  on  trial  that  the 
defendant  could  prove  notliin*^  in  sujjport  of  tluMn  which  tliu 
state  would  not  be  ready  to  admit,  the  only  question  beinj^a 
question  or  law;  /.  <>.,  whether  the  persons  named  were  not 
qualilied  in  spite  of  what  was  ])rovcd.  Are  the  pleas  which 
have  actually  been  pleaded  any  better?  Our  statute  (Pub.  St. 
R.  I,,  ch.  2()0,  g  1)  provides  that,  subject  to  certain  exceptions) 
"  all  persons  who  are  qualified  to  vote  upon  any  proposition  to 
im])ose  a  tax,  or  for  the  expenditure  of  money  m  any  town, 
shall  be  liable  to  serve  as  jurors." 

In  Slate  v.  Davis,  12  K.  I.,  402,  this  court  decided  that  no 
person  is  qualilied  to  servo  as  a  juror  unless  he  is  qualilied  to 
vote  as  aforesaid.  Qualification  for  the  one  purpose  is  (uialili- 
cation  for  the  other,  and  lack  of  it  for  the  one  purpose  is  lack 
of  it  for  the  other;  and  therefore  to  plead  that  a  person  who 
acted  as  a  grand  juror  was  not  qualified  to  vote  on  any  projw- 
sition  to  impose  a  tax  or  for  the  expenditure  of  money  in  his 
town  is  only  to  plead,  iu  another  form  of  words,  that  ho  was 
not  qualilied  to  serve  as  a  juror.  The  right  to  vote  on  a  propo- 
sition to  impose  a  tax  or  for  the  expeuditui'e  of  money  is  de- 
termined by  the  constitution,  and  depends,  not  on  any  single 
fact,  but  on  a  number  of  facts  concurring  together.  If  any  one 
of  these  facts  is  lacking,  the  right  to  vote  will  not  exist.  The 
defendant,  therefore,  can  support  his  plea  by  proving  that 
some  one  of  said  facts  is  lacking,  and  the  prosecution  can  never 
learn  from  the  plea  which  one  he  is  going  to  try  to  prove  is 
lacking,  though  it  is  one  of  the  chief  purposes  of  sj)eeial  plead- 
ing to  elicit  such  information.  Or  it  may  be  that  the  defentl- 
ant  has  not  correctly  construed  the  constitution,  and  in  going 
to  piove  the  lack  of  some  fact  which  is  unnecessary,  or  the 
necessity  of  which  is  disputed,  when,  if  the  lack  were  specific- 
ally alleged,  the  prosecution,  instead  of  traversing  the  plea, 
would  (^cmur  to  it.  That  such  legal  questions  may  arise,  see 
State  V.  Ilaloiiey,  12  R.  I.,  251.  See,  also,  Iu  re  The  Providence 
Votej's,  13  R.  I.,  737.  We  know  of  no  reason  which  would 
avail  for  holding  the  first  and  second  pleas  bad,  if  the}'  simply 
alleged  that  the  persons  named  in  them  were  not  qualified  to 
serve  as  grand  jurors,  which  is  not  equally  valid  for  holding 
them  to  be  bad  as  framed. 


HTATE  V.  DL'fiOAN. 


228 


In  Iliirtlcn  v,  Stat<\  22  Ind.,  347,  the  ticcnsccl  pleaded  in 
iihatenient  that  tlu^  grand  jurors  were  not  '"  re|)Ulal)lo  I'ree- 
lioklors  or  lioiiseholders  of  the  county  of  (Hark,  and  taxable 
tlicM'ciii."  Tlio  court  hold  the  plea  bail  —  First,  because 
whether  they  wore  reputable  was  only  a  fjuestion  for  the  per- 
sons selecting'  them;  and  «<?ty>?j^/,  because,  disregarding  that, 
the  plea  was  too  uncertain  as  to  the  particular  disiiualillcation 
intended  to  be  relied  on.  In  Pried  v.  Stale,  10  Xeb.,  oDIJ,  the 
plea  was  that  "  the  grand  jury  that  found  said  indictment  was 
not  legally  cho!-en  and  impaneled."  Jleld  bad  on  demurrer. 
The  ccjurtsay:  "The  plea  should  have  pointed  out  win  rein 
the  grand  jury  were  not  legally  chosen  and  impaneled."  To 
^he  same  ell'ect,  Baldwin  v.  State,  12  Xeb.,  01;  Urennau  v. 
]\()p/e,  I'}  111.,  511;  State  v.  liroo/is,  l>  Ala.,  10;  State  v.  J^'eicer, 
7  blackf.,  327.  In  JJi/erv.  State,  11  Lea  (Tenn.),  5(i:»,  the  court 
say:  '"The  plea  does  aver  broadly  that  the  grand  jurors  were 
not  legally  elected,  impaneled  and  sworn,  which  is  only  the 
!i verment  of  a  conclusion,  not  of  facts  from  which  the  court 
may  draw  its  own  conclusion."  AVe  tlo  not  see  that  the  ))leas 
in  these  cases  were  any  uu)re  objeclionablc!  than  the  pleas  hero 
interpcjsed.  It  is  true  that  pleas  like  the  defendant's  first  and 
second  pleas  have  been  sustained  by  this  court  in  previous 
cases,  but  in  those  cases  the  question  as  to  their  sulliciency  in 
tliis  respi'ct  was  not  raised.  The  closing  remark  of  the  court 
in  State  r.  .Davis,  12  1{.  I.,  492-41)5,  related  to  another  point, 
as  will  be  seen  by  reference  to  the  case  there  citetl. 

The  gio.  .1(1  of  demurrer  to  the  third  plea  is  that  it  does  not 
negative  the  possibility  that  Denjamin  Hall,  Jr.,  was  legally 
drawn  as  grand  juror,  since  it  is  the  duty,  not  of  the  city  coun- 
cil of  the  citN' of  Newport,  but  of  the  board  of  aldermen  of 
said  city,  to  draw  the  gi-and  and  petit  jurors  required  of  it. 
We  think  that  the  duty  belongs  to  tlie  board  of  aldermen,  and 
conse(|Uently  that  the  demurrer  is  good.  The  certainty  re- 
(juired  of  pleas  in  abatement  is  extreme.  In  the  language  of 
the  old  books,  they  must  be  certain  "  to  a  certain  intent  in 
every  particular."  They  must  leave  "on  the  one  hand  noth- 
ing to  be  supplied  by  intendment  or  construction;  and  on  the 
other  no  supposable  special  answer  unobviated."  Gould,  Pi., 
ch.  Ill,  g  57;  State  V.  Bryant,  10  Yerg.  (Tenn.),  527;  State  v. 
WardyQ'k  Me.,  545;   United  States  v.  Williams,  1  Dill.,  485; 


f*.;?V|S 


":..-\llt 


224 


AMERICAN  CRIMINAL  REPORTS. 


O'Connell  v.  Begina,  11  Clark  &  F.,  155;  Com.  v.  Thompson,  4 
Leigh,  667;  Ward  v.  State,  48  Ind.,  289.  The  third  plea  does 
not  satisfy  this  requirement. 

The  defendant  moves  for  leave  to  amend  the  pleas  if  thev 
are  found  faulty.  Assuming  that  we  have  power  to  allow  the 
amendment,  we  are  not  satisfied  that  we  ought  to  allow  it. 
Pleas  in  abatement  for  mere  defects  in  the  constitution  of  the 
grand  jury  are  generally  interposed  for  delay,  and  are  not 
favored.  The  defendant,  if  innocent,  can  defend  himself  as 
easily  under  this  indictment  as  under  another  for  the  same 
offense. 

Demurrer  sustained  and  pleas  overruled. 


Ex  Pakte  Schmidt. 

(71  Cal..  213.) 

Grand  jttrob:  When  compelled  to  divrilge  proceedings  before. 

DrVULGIXG   PROCEEDINGS  BEFOUK  GRAND  JURY—  NAMES  OF  WITNESSES  ()\ 

INDICTMENT. —  A  grand  juror  siimnioncd  as  a  witness  ujion  the  liearinj;- 
of  a  motion  to  sot  aside  an  indictment  on  tlio  ground  tluit  the  names 
of  all  the  witnesses  examined  before  the  grand  jury  have  not  been  in- 
serted or  indorsed  tiiereon  cannot  refuse  to  testify  as  to  what  witnesses 
were  e.xamined  before  the  grand  jury. 

On  habeas  corjius. 

John  B.  Harmon,  for  petitioner. 
Davis  Louderhach,  for  res[)ondent. 

The  Coukt.  A  jierson  had  been  indicted  for  an  offense,  and 
that  person  moved  tlie  court,  under  section  905,  Penal  Code, 
to  set  aside  tlie  indictment  on  the  ground  that  the  names  of 
all  the  witnesses  examined  before  the  grand  jur}'  had  not  been 
inserted  at  the  foot  of  the  indictment  or  indorsed  thereon. 
On  the  hearing  of  the  motion,  and  in  support  thereof,  the  peti- 
tioner, a  member  of  the  grand  jury,  was  called  and  sworn,  and 
was  interrogated  as  to  whether  any  person  was  examined  as  a 
witness  before  the  grand  jury  whose  name  was  not  inserted  at 
the  foot  of  the  indictment  or  indorsed  thereon.  The  petitioner 
refused  to  answer  the  question,  on  the  ground,  that  ho  would 


^ ',  m 


■pw 


EX  PARTE  ENGLAND. 


225 


thereby  be  disclosing  secrets  of  the  grand-jury  room;  and  such 
refusal  was  by  the  court  below  adjudged  a  contempt,  and  the 
petitioner  was  committed.     Hence  this  writ. 

Section  943,  Penal  Code,  declares  that  the  names  of  the 
witnesses  examined  before  the  grand  jury,  or  whose  deposi- 
tions may  have  been  read,  must  be  inserted  at  the  foot  of  the 
j:idictment,  or  indorsed  thereon,  before  it  is  presented  to  the 
court;  and  by  section  01)5  the  failure  to  so  insert  or  indorse 
the  names  of  all  the  witnesses  is  made  ground  for  setting  aside 
tlie  indictment.  By  section  025  no  person,  except  the  district 
attorney  and  witnesses  under  examination,  are  permitted  to 
be  present  at  the  sessions  of  the  grand  jur^'.  If,  therefore, 
neitlicr  the  members  of  the  grand  jury  nor  the  district  attor- 
ney could  be  called  upon  to  state  whether  any  witnesses  were 
examined  other  than  those  whose  names  have  been  inserted  or 
indorsed,  a  barren  right  to  move  to  dismiss  is  given  without 
the  power  to  ascertain  whether  or  not  the  statute  has  been 
complied  with.  Under  our  statute  the  names  of  the  witnesses 
before  the  grand  jury  are  not  secrets  to  be  undivulged,  at  least 
for  the  purpose  herein  referred  to;  because,  the  momeni  ;in  in- 
dictment is  presented,  that  moment  the  names  should  be  a 
part  of  the  record. 

The  petitioner  is  remanded,  and  the  writ  discharged. 


Ex  Parte  Exgland. 

(23  Tex.  App.,  90.) 

Habeas  corpus:  Bail  in  murder  ease. 

Bail  in  murder  case  after  disagreement  of  jury.—  The  fact  that  a 
single  trial  of  an  accused  for  murder  resulted  in  the  disagreement  of 
the  jury  will  not  authorize  the  refusal  of  bail.  But  the  failure  of  the 
proof  to  establish  satisfactorily  the  killing  upon  express  malice  enti- 
tles the  applicant  to  bail. 

Appeal  from  District  Court,  Eastland  County.    Tried  before 
Hon.  J.  C.  Kandolph. 
The  opinion  discloses  the  case. 

Davenport  dL'  Truly,  for  applicant. 
J.  H.  Burts,  assistant  attorney-general,  for  the  state. 
Vol.  VII -15 


tim^ 


226 


AMERICAN  CRIMINAL  EEPORTS. 


White,  P.  J.  Appellant  was  indicted  for  the  murder  of  one 
W.  R.  Todd.  Upon  a  trial  under  said  indictment,  the  jury 
having  failed  to  agree,  a  mistrial  was  ordered,  and  the}'  were 
discharged  by  consent  of  parties.  Appellant  then  obtained 
a  writ  of  habeas  corpus  upon  an  application  for  bail,  which 
having  been  heard  in  terra  time  by  the  Hon.  J.  C.  Randolph, 
judge  of  the  thirty-fifth  judicial  district,  he  was  denied  bail, 
and  remanded  to  custody  to  await  another  trial.  From  this 
judgment  he  has  appealed  to  this  court. 

All  prisoners  are  bailable  ''unless  for  capital  offenses  when 
the  jjroff  is  evideyiV  Consc.  Tex.,  Bill  of  Rights,  §  11.  Does 
a  mistrial  upon  the  disagreement  of  the  jury  as  to  a  verdict 
in  a  capital  case  establish  jix';*  se  tlie  fact  that  the  proof  is 'not 
evident,  and  that,  therefore,  the  accused  is  entitled  to  baiU 
Mr.  Bisho[t  says:  "If  there  has  been  a  trial  before  a  petit 
jury  failing  to  agree,  and  especially  if  there  have  been  two 
such  trials,  that  will  be  a  strong  fact  moving  to  a  granting  of 
bail."  1  Bish.  Crim.  Proc.  (2d  cl),  §  2(52.  In  his  valuable 
work  on  Habeas  Corpus  Mr.  Church  says:  "But  the  court 
will  not,  as  matter  of  course,  admit  to  bail  because  the  jury  in 
a  trial  for  murder  have  not  agreed  upon  a  verdict.  .  .  . 
"Where  a  jury  have  disagreed  twice  upon  a  question  of  guilt, 
a  doubt  may  well  be  raised."  Sec.  408;  citing  People  v.  Ten- 
der, 19  Cal.,  539;  People  v.  Cole,  6  Parker,  Crim.  li.,  C95;  State 
V.  Summons,  19  Ohio,  139;  Ex  parte  Pattlson,  50  Miss.,  161; 
People  V.  Perry,  8  Abb.  Pr.  (N.  S.),  2T. 

On  the  simple  fact  alone  in  this  case  that  a  trial  had  been 
had  and  the  jury  had  failed  to  agree,  we  do  not  think  appel- 
lant was  entitled  to  bail.  But,  upon  the  evidence  as  exhibited 
to  us  in  this  record,  we  are  of  opinion  appellant  was  entitled 
to  bail.     This  evidence  will  not  be  discussed. 

The  judgment  of  the  court  below  refusing  bail  is  reversed, 
and  appellant  will  be  admitted  to  bail  u|)on  his  executing  a 
bond  in  the  sum  of  $3,500,  with  good  security,  conditioned 
as  the  law  directs;  and,  upon  the  execution  by  him  of  said 
bond,  the  sheriff  of  Eastland  county,  having  him  in  charge, 
will  release  him  from  custody.  Judgment  revereed,  and  bail 
allowed  in  the  sum  of  $3,500.    Ordered  accordingly. 


m 


STATE  EX  REL.  LEMBKE  v.  BECHDEL. 


227 


ym 


State  ex  rel.  Lembke  and  another  v.  Beciidel. 

(37  Minn.,  860.) 

Habeas  corpus  :  Right  to  custody  of  infant  —  Res  adjudicata. 

Habeas  corpus  to  deterjiine  right  to  custody  of  infant.— An  ad- 
judication on  the  question  of  the  right  to  the  custody  of  nn  infant 
cliild,  brought  upon  a  writ  of  habeas  corpus,  may  be  pleaded  as  "rea 
adjudicata,"  and  is  conclu8i%-e  upon  the  same  parties  in  all  future  con- 
troversips  relating  to  the  same  matter,  and  upon  the  same  state  of 
facts.  Such  a  case,  which  is  one  of  private  parties  contesting  pri- 
vate rights  under  the  form  of  proceedings  on  habeas  corpus,  dis- 
tinguished from  one  where  the  writ  is  sued  out  by  or  on  behalf  of  a 
prisoner,  or  one  restrained  of  his  liberty,' 

Appeal  from  District  Court,  Scott  County. 
Writ  of  habeas  corpus. 

R.  A.  &  F.  C.  Invin  and  //. ./  Peck,  for  respondent. 
A.  Danfoi'd  and  Henry  J.  Gjcrtsen,  for  relators. 


MiTcnF.LL,  J.  In  Be  Snell,  31  Minn.,  110,  this  court  held  that 
a  decision,  under  one  writ  of  habeas  corpus,  refusing  to  dis- 
charge a  prisoner,  is  not  a  bar  to  the  issuing  of  another  writ, 
based  upon  this  same  state  of  facts,  nor  to  a  hearing  and  dis- 
charge thereon.  "While  there  is  room  for  a  difference  of  opin- 
ion, and,  in  fact,  a  conflict  of  decisions,  upon  this  question,  yet, 
in  view  of  the  origin,  history  and  purposes  of  tiiis  writ  as  a 
"  writ  of  liberty,"  we  adopted  this  rule  in  this  class  of  cases  in 
which  the  liberty  of  the  citizen  is  the  question  directly  in- 
volved. But  such  cases  are  clearly  distinguishable,  we  think, 
both  upon  principle  and  authorit\%  from  those  in  which  the 
writ  is  sued  out  merely  for  the  purpose  of  determining  which 
of  two  parties  is  entitled  to  the  custody  of  an  infant  child. 
In  the  latter  the  quLJiion  is  not  really  whether  the  infant  is 
restrained  of  its  liberty,  but,  who  is  entitled  to  its  custody? 
It  is  true  that  the  charge  is  that  the  child  is  unlawfully  re- 
strained, etc.;  but  the  gist  of  this  cha»'ge  is  not  that  the  child 
is  unlawfully  deprived  of  its  libert}^  but  that  such  restraint  is 
in  prejudice  of  the  right  of  the  relators  to  its  custody.    The 

1  See  note. 


,    •'•;:   H;'.,.'  MKi 


228 


AMERICAN  CRIMINAL  REPORTS. 


case  is  really  one  of  private  parties  contesting  private  rights 
under  the  form  of  proceedings  on  habeas  corpus. 

In  our  judgment,  in  such  cases,  both  principle  and  considera- 
tions of  public  policy  require  the  application  of  the  doctrine 
of  estOjjpel  to  judicial  proceedings.  We  therefore  hold  that 
a  former  adjudication  on  the  question  of  the  right  to  the  cus- 
tody' of  an  infant  child,  brought  up  on  habeas  corpus,  may  be 
pleaded  as  res  adjudicata,  and  is  conclusive  upon  the  same  par- 
ties, upon  the  same  state  of  facts.  Jlereein  v.  People,  25  Wend., 
04;  People  v.  Brady,  5G  K  Y.,  182;  Freem.  Judgm.,  §  324; 
Church,  Hab.  Corp.,  §  387.  In  this  case  the  former  adjudica- 
tion pleaded  in  the  return  to  the  writ  is  admitted  in  the  an- 
swer; and  no  new  facts  are  alleged  as  having  since  occurred 
which  alter,  in  any  material  respect,  the  rights  of  either  party 
to  the  custody  of  the  child.  The  parties  are,  in  effect,  the 
same;  for  although  the  alleged  mother  of  the  child  was  the 
sole  relator  in  the  former  proceedings,  while  her  husband  (who 
is  not  the  father  of  the  child)  now  joins  with  her  as  relator, 
yet  he  can  have  no  rights  in  the  matter  independently  of  his 
wife.  If  he  has  any  rights,  they  must  be  wholly  derived  from 
and  dependent  upon  those  of  his  wife.  The  motion  of  the 
respondent  to  discharge  the  writ  is  therefore  granted. 

Vanderbcegh,  J.,  being  absent  on  the  argument,  took  no 
part  in  the  decision  of  this  case. 


f:  mm\ 


Note. —  Habeas  corjnis  —  Second  application  —  Keidy-discovered  evi- 
dence.—  A  prisoner  applied  for  writ  of  habeas  corjms  on  the  ground  that 
he  had  been  pardoned  and  tlie  pardon  revoked  after  acceptance.  It  ap- 
peared that  the  pardon  had  been  revoked  for  fraud  in  its  procurement.  A 
second  application  was  made,  with  an  affidavit  of  the  governor  rebutting 
the  presumption  of  fraud.  The  statt;  pleaded  that  no  newly-discovered  evi- 
dence was  set  up  as  a  ground  for  revising  tlie  former  adjudication.  Held, 
that  under  tho  provisions  of  the  Code  of  Criminal  Procedure  of  Texas, 
article  189,  the  evidence  that  will  warrant  the  issuance  of  a  second  writ 
need  not  be  newly  discovered.  If  it  is  important  evidence,  which,  though 
known  to  the  petitioner,  could  not  be  obtained  by  him  on  the  former  hear- 
ing, it  falls  within  the  statute.    Ex  parte  Rossau,  24  Tex.  App.,  000. 

Pardon  —  Fraud  in  procuring  —  Rebuttal  —  Tl>e  relator  applied  for  a  writ 
of  habeas  corpus  on  the  ground  that  he  had  been  pardoned  and  his  pardon 
revoked  after  acceptance.  It  appeared  prima  facie  that  there  was  fraud  in 
the  procurement  of  the  pardon,  and  the  writ  was  refused.  Subsequently 
the  relator  applied  for  a  second  writ,  with  affidavits  from  the  governor  and 


^m 


PATTERSON  v.  STATE. 


229 


others  rebutting  the  presumption  of  fraud  in  the  procurement  of  the  par- 
don. Held,  that  the  presumption  of  fraud  being  removed,  tlie  pardon  is  of 
full  force  and  effect,  and  the  relator  is  entitled  to  a  discharge  from  confine- 
ment.   Ibid. 


Pattekson  v.  State. 
(49  N.  J„  326.) 

Habeas  corpus:  Power  of  court  over  proceedings  —  Practice — Demanding 

trial. 

1.  PoWEB  OVER  WRITS— Amending  return.— The  judicial  officer,  upon  a 
return  to  a  writ  of  habeas  corpus,  may  compel  the  return  of  any  war- 
rant, order  or  document  whicli  he  has  reason  to  think  exists,  and  may 
amend  tlie  return  to  such  writ  at  any  time  before  rendering  his  de- 
cision. ^ 

3,  Cause  of  detention. — A  return  of  facts  which  show  a  cause  for  de- 
tention will  be  sufficient,  if  tlieir  truth  or  sufficiency  are  not  ques- 
tioned by  tlw  prisoner  at  the  hearing. 

3.  Courts — Oyer  and  terminer.  — A  justice  of  the  supreme  court,  sit- 

ting with  a  judge  of  the  court  of  common  pleas,  constitutes  a  court  of 
oyer  and  terminer,  although  there  is  a  vacancy  in  the  number  of  com- 
mon pleas  judges  in  tlie  county. 

4.  Time  of  trial. —  A  defendant  should  not  be  discharged  on  habeas  cor- 

pus because  he  has  not  been  tried  the  second  term  after  issue  joined, 
under  the  provisions  of  section  63  of  the  act  concerning  criminal  pro- 
ceedings, unless  it  ap^^ears,  first,  that  he  has  applied  to  tiie  trial 
court  and  has  been  refused  his  discharge;  and  secondly,  that  such 
refusal  was  so  arbitrary  and  groundless  aa  to  amount  to  a  clear  abuse 
of  discretion. 


On  certiorari. 

This  writ  brings  up  certain  proceedings  had  before  Justice 
Scudder  ujion  a  return  to  a  writ  of  habeas  corpus  allowed  upon 
the  petition  of  Frank  Patterson,  who  was  in  the  custody  of  the 
sheriff  of  Monmouth  county.  The  petition  set  out  that  the 
cause  or  pretense  of  such  confinement  was  because  of  a  certain 
indictment  for  forgery  presented  by  the  grand  jury  of  Mon- 
mouth county  of  the  term  of  October,  1884;  that  the  said  im- 
prisonment was  alleged  to  be  illegal  because  the  indictment 
was  found  by  a  grand  jury  which  the  sheriff  did  not  cause  to 
come  before  the  court  of  oyer  and  terminer  and  jail  delivery, 

1  See  note. 


230 


AMERICAN  CRIMINAL  REPORTS. 


1 1' 


:■>,  '■'  m 


according  to  the  statute,  in  that  the  said  oyer  and  terminer 
was  not  legally  constituted;  also  that  the  said  indictment  was 
found  at  the  October  term  of  court  of  1S84,  and  that  the  de- 
fendant had  been  in  confinement  as  aforesaid  since  January, 
1885,  and  should  be  discharged  because  he  was  not  tried  at  the 
term  or  session  in  which  issue  was  joined,  nor  at  the  term 
thereafter,  and  no  further  time  has  been  allowed  for  the  trial 
thereof  for  just  cause.  Upon  this  petition  a  writ  was  allowed, 
to  which  the  sheriff  made  return  that  the  said  Patterson  was 
restrained  of  his  liberty  by  virtue  of  certain  indictments  found 
in  the  Monmouth  county  oyer  and  terminer  term,  ISSi;  and 
also  that  the  said  Frank  Patterson  was  duly  surrendered  to 
the  sherilF  by  one  of  his  bail,  December  28,  1884;  and  also  by 
certain  indictments  found  at  the  January  term,  1885,  of  the 
Monmouth  county  oyer  and  terminer;  and  also  by  certain 
orders  of  the  court  of  quarter  sessions  of'tlie  county  of  Mon- 
mouth,—  all  of  which  would  more  fully  appear  in  the  proceed- 
ings of  said  courts  of  oyer  and  terminer  and  quarter  sessions, 
certified  to  by  the  clerk  of  the  county  of  Monmouth,  and  an- 
nexed to  the  return  as  a  part  thereof.  Then  follows  the  certi- 
fied copy  of  the  record  of  the  proceeding  in  the  court  of  oyer 
and  terminer, as  follows:  "October  term,  1884,  the  grand  jury 
come  into  court  and  present  the  following  bills  and  indict- 
ments: Frank  Patterson,  indictments  for  forgery,  numbers 
from  81  to  114,  inclusive.  October  17,  1884,  it  was  ordered 
that  all  the  indictments  found  this  term  be  handed  down  to 
the  quarter  sessions.  January  term,  1885,  the  grand  jury  pre- 
sented seven  more  bills  against  Frank  Patterson  for  forgery. 
January  19,  1885,  it  was  ordered  that  all  mdictments  found 
this  term  be  handed  down  to  the  court  of  quarter  sessions." 

In  the  quarter  sessions  the  record  shows  the  following  pro- 
ceedings: On  October  23,  1884,  the  defendant,  being  arraigned 
and  charged,  pleaded  not  guilty  to  each  of  the  indictments 
found  at  the  October  term,  and  entered  into  recognizance  with 
two  sureties  for  his  appearance  on  Kovember  17tii,  for  which 
date  the  trial  was  set  down.  On  November  17th  it  was  or- 
dered by  the  court  that  the  trial  of  the  several  imlictments  be 
postponed  till  November  19th,  and  on  November  19th  it  was 
ordered  that  they  be  postponed  till  the  next  term  of  the  court, 
and  the  defendant  entered  into  recognizance,  witU  two  sureties, 


PATTERSON  v.  STATE. 


231 


on  each  of  the  indictments,  for  his  appearance  on  the  first 
Tuesday  in  January,  1S85.  On  March  3,  1885,  the  petitioner 
was  arraigned  upon  the  indictments  found  at  tlie  January 
term,  1885,  and  pleaded  not  guilty  to  each.  On  March  5th  it 
was  ordered  that  all  forgery  indictments  found  October  term, 
1884,  be  continued  till  May  term,  and  on  May  13tlj  it  was  or- 
dered that  all  indictments  standing  against  the  petitioner  be 
tried  on  the  2Tth  of  May,  and  that  the  defendant  be  remanded. 
On  May  20th  it  was  ordered  that  all  the  indictments  for  forgery 
against  the  defendant  be  postponed  until  June  10,  1885,  at 
10  o'clock  A.  M.  On  June  lOth  defendant  was  set  at  bar  for 
trial  for  forgery  of  the  Henry  Krockle  note,  and  the  jury  dis- 
agreed, and  were  discharged,  and  the  defendant  was  remanded. 
On  June  15th  the  same  indictment  was  again  tried,  with  the 
same  result.  On  June  ISth  defendant  was  tried  upon  the  indict- 
ment for  forging  the  Uriah  White  note,  with  a  similar  result. 
On  July  2d  he  was  tried  for  forging  the  Buchanan  note,  which 
trial  resulted  in  a  conviction  upon  the  first  count.  On  July  13th 
he  was  tried  upon  another  of  the  indictments,  and  convicted 
upon  the  fifth  count.  On  July  20th  he  was  tried  upon  another 
indictment,  which  trial  resulted  in  a  disagreement  of  the  jury. 
At  this  term  the  counsel  for  the  defendant  moved  that  the  trial 
of  all  the  indictments  be  had  at  that  term,  or  the  defendant  be 
discharged,  but  the  court  ordered  that  the  trial  of  all  indict- 
ments untried  be  continued  until  the  next  term,  for  good 
cause  shown.  The  judg-nents  upon  the  two  convictions  were 
taken  to  the  supreme  court  by  writs  of  error,  and  the  judg- 
ments were  reversed  at  June  term,  1886.  The  writ  of  habeas 
corpus  was  tested  June  28,  1880. 

Argued  at  November  term,  1880,  before  Justices  Reed,  Magie 
and  Parker. 

11.  T.  Stout,  for  prosecutor. 

C.  T.  UaUjht  and  J.  W.  Sicartz,  for  the  state. 


Reed,  J.  The  first  five  reasons  assigned  for  the  reversal  of 
the  order  below  remanding  the  prosecutor  are  directed  against 
the  sufficiency  of  the  return  made  by  the  sheriff  in  matter  of 
form.  I  say  in  matter  of  form,  because  it  cannot  be  insisted 
with  any  degree  of  plausibility  that,  if  the  facts  set  out  in  the 


f 

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if'i.-w-   ' 


:«: 


232 


AMERICAN  CRIMINAL  REPORTS. 


sheriflf  8  return  be  true,  the  prosecutor  was  not  properly  in  cus- 
tody. The  fact  that  he  had  been  indicted,  discharged  on  bail, 
surrendered  by  his  surety,  brought  into  court  repeatedly  for 
trial,  and  remanded  to  custody,  all  appear  upon  the  face  of  the 
return,  which  includes  the  record  of  the  proceedings  of  the 
court  of  oyer  and  terminer  and  quarter  sessions.  The  point  of 
the  objections  is  that  these  facts  should  appear  more  certainly, 
and  in  support  of  this  view  we  are  referred  to  section  15  of 
the  haheas  corpus  act.  The  third  subdivision  requires  that  the 
person  upon  whom  the  writ  of  haheas  corpus  shall  be  served 
shall  in  his  return,  if  defendant  be  detained  by  any  writ,  war- 
rant, or  other  written  authority,  annex  a  copy  thereof  to  said 
return,  and  the  original  shall  be  produced  and  exhibited  on  the 
return  to  the  court  or  justice  before  whom  the  same  is  re- 
turned. This  provision,  in  another  form,  is  designed  to  secure 
the  right  of  the  defendant,  first  guarantied  by  the  fifth  section 
of  the  haheas  corpus  act  (31  Car.  II. j,  to  a  copy  of  the  warrant, 
commitment  or  detainer  under  which  he  is  imprisoned.  If  the 
custodian  neglects  to  return  such  warrant  he  can  be  ordered 
to  do  so  by  the  judicial  officer  who  issues  the  writ,  and  this 
order  can  be  enforced  by  attachment,  licv.,  p.  470,  §  IS ;  Church, 
Hab.  Corp.,  §  124;  State  v.  liahorg,  2  South.,  545.  But  the 
mere  failure  of  such  custodian  to  return  a  warrant,  or  the  fact 
that  his  return  is  imperfect,  does  not  o|)erate  to  discharge  the 
prisoner.  The  recognition  of  such  a  rule  would  place  in  the 
hands  of  negligent  or  corrupt  jailers  the  power  to  empty  a 
penitentiary. 

"Where  the  court  or  judge  has  reason  to  believe  that  a  writ, 
order  or  record  is  in  existence  which  siiould  be  before  the 
court  or  officer  to  enable  complete  justice  to  be  done,  the  pro- 
duction of  such  paper  can  be  compelled,  and  the  return  amended. 
The  court  or  justice,  upon  the  return  coming  in,  may  examine 
under  oath  the  officer  or  other  person  nitiking  such  return,  with 
respect  to  the  subject-matter  thereof.  Itev.,  p.  470,  §  10.  Ac- 
cording to  the  practice  both  in  England  and  tbis  country,  the 
return  can  be  amended  at  any  time  before  the  final  disposition 
of  the  cause,  llurd,  Ilab.  Corp.,  202;  Matter  of  Ilopson,  40 
Barb.,  40;  Watson's  Case,  9  Adol.  &  E.,  731;  People  v.  Cava- 
nagh^  2  Park.  Crira.  Cas.,  058.  And  the  return,  when  made, 
will  be  liberally  construed,    Kag  v.  Bethel^  5  Mod.,  19;  People 


V. 

49 


PATTERSON  v.  STATE. 


233 


V.  N'evins,  1  Hill,  154;  Brenan'a  Case,  10  Aclol.  &  E.  (K  S.), 
492. 

In  the  present  case  it  is  urged  upon  the  argument  here  that 
copies  of  the  indictments  should  have  been  returned.  For  what 
purpose  it  is  difficult  to  imagine.  Il^'ot  for  the  purpose  of  pass- 
ing upon  their  sufficiency,  for  the  court  or  justice  upon  habeas 
corpus  does  not  sit  to  review  errors.  Cooley,  Const.  Lira.,  347. 
For  the  purpose  of  raising  the  question  of  the  constitution  of 
the  court  of  oyer  and  terminer,  and  of  the  grand  jury  which 
found  them,  their  return  in  full  is  unnecessary,  and  this  was 
the  only  question  raised  by  the  petition,  or  upon  the  hearing 
before  the  justice,  so  far  as  appears  by  the  record.  The  same 
remark  may  be  made  in  regard  to  the  objection  that  there  was 
no  sufficient  return  of  the  surrender  of  the  defendant  by  his 
surety.  The  fact  of  a  surrender  was  not,  so  far  as  appears, 
controverted  at  any  stage  of  tiie  proceeding.  Had  it  been  con- 
troverted, and  then  had  it  been  thought  material  by  the  justice 
to  inquire  if  a  rule  was  entered  upon  the  surrender,  and,  if  so, 
that  a  copy  of  the  rule  should  be  produced,  then  the  alleged 
defect  would  have  been  proved  to  exist  in  fact,  or  else  the  re- 
turn could  have  been  perfected.  The  prisoner  not  having  con- 
troverted the  return  as  made,  it  must  be  presumed  that  the 
fact  as  stated  by  tlie  sheriff  is  true. 

In  the  case  of  People  ex  rel.  Trainer  v.  Bahcr,  89  N.  Y.,  4G0, 
it  was  held  that,  although  a  statute  requires  that  after  a  crim- 
inal has  been  sentenced  a  warrant  of  commitment  shall  be 
signed  by  the  judge,  yet  if  the  petition  for  the  writ  contains 
no  allegation  that  tljo  defendant  was  detained  without  a  war- 
rant, and  there  is  no  order  in  the  writ  to  send  up  the  warrant, 
but  only  the  cause  of  the  imprisonment,  a  certified  copy  of  the 
minutes  of  the  court  showing  the  sentence  imposed  will  suffi- 
ciently show  the  cause  of  imprisonment.  But  the  statement 
of  the  existence  of  the  indictments  and  of  the  surrender  are 
only  steps  in  a  proceeding  or  series  of  proceedings  of  which 
the  subsequent  orders  in  the  court  of  quarter  sessions  remand- 
ing the  defendant  into  custody  are  a  part.  These  orders  are 
set  out  in  full  in  the  record  attached  to  the  return  as  a  part 
thereof.  This  is  sufficient,  at  least,  until  some  intermediate 
step  is  attacked.  Church,  Hab.  Corp.,  §  190;  Watson'' s  Case,  9 
Adol.  &  E.,  731. 


i  ill 


ill 


i  .1  i 


>;'?, 


234 


AMERICAN  CRIMINAL  REPORTS. 


■Hk'rmi 


My  conclusion  is  that  the  attack  upon  the  form  of  the  return 
now  made  cannot  be  recognized. 

It  is  next  insisted  that  the  indictments  against  the  petitioner 
were  not  found  by  a  legally  organized  grand  jury.  The  line 
of  argument  b}'  which  this  point  is  supported  is  the  following; 
By  a  special  act  applying  to  Monmouth  county  the  court  of 
common  pleas  was  constituted  to  consist  of  four  judges;  that 
there  were  only  three  appointed  judges  of  the  court  of  common 
pleas,  and  therefore  there  was  no  such  court;  that,  therefore, 
in  the  language  of  the  brief  of  the  counsel  for  petitioner,  the 
court  of  common  pleas  cannot  be  a  factor  in  the  making  up  of 
the  court  of  oyer  and  tcnniner. 

Upon  the  point  lliat  the  court  of  common  pleas  must  consist 
of  four  judges,  we  are  referred  to  the  case  of  /State  v.  Patterson, 
decided  in  this  court  at  June  term  last.  Eut  a  glance  at  the 
opinion  in  that  case  is  only  necessary  to  enable  us  to  perceive 
that  the  court  only  decided  that,  by  the  act  of  1870  (Pamphlet 
Laws,  p.  4'28),  it  required  three  judges  to  hold  a  session  of 
such  court.  The  defect  in  the  proceeding  reviewed  in  that  case 
arose  from  the  fact  that,  in  the  face  of  this  statate,  only  two 
of  the  judges  sat  at  the  drawing  of  the  jury.  It  was  admitted 
that  three  judges  could  hold  the  court.  The  contention,  then, 
that  there  was  no  legal  court  of  common  j)leas  in  existence, 
falls  to  tlie  ground. 

The  notion  that  a  failure  to  appoint  a  fourth  judge  destroys 
the  legal  constitution  of  the  court  for  the  transaction  of  busi- 
ness is  entirely  fallacious.  In  view  of  such  a  theory,  a  vacancy 
in  one  of  the  positions  filled  by  a  justice  of  the  supreme  court 
would  destro}'  the  power  of  the  court  to  conduct  the  legal  busi- 
ness of  the  state.  If  there  was  but  a  single  judge  of  the  court 
of  common  pleas  appointed,  although  he  alone  could  not  hold 
a  session  of  the  court,  yet  he  with  a  justice  of  the  supreme 
court  could  hold  the  court  of  oyer  and  terminer.  Kev.,  p.  271, 
§  2G.  So  the  existence  of  a  legally  constituted  court. of  com- 
mon pleas  is  not  now  involved,  but  only  the  question  whether 
there  was  a  judge  of  the  court  of  common  pleas  with  the  jus- 
tice of  the  supreme  court  in  the  court  of  oyer  and  terminer. 
The  answer  to  the  objection  upon  this  ground  is  so  obvious 
upon  the  merits  that  it  is  unnecessary  to  examine  how  far  an 
objection  to  the  qualification  of  a  judge  to  hold  a  court  can  be 


PATTERSON  v.  STATE. 


235 


considered  upon  habeas  corpus.  The  rule  seems  to  be  that  the 
character  of  a  de  facto  officer,  so  long  as  the  court  has  juris- 
diction over  the  person  and  subject-matter  of  the  adjudication, 
cannot  be  questioned  upon  this  proceeding.  Church,  Ilab. 
Corp.,  §§  350,  357,  369. 

It  is  next  insisted  that  the  petitioner  was  entitled  to  his  dis- 
charge because  his  trials  were  unreasonably  delayed.  The 
counsel  for  the  petitioner  places  himself  upon  the  provision  of 
our  state  constitution  that,  in  all  criminal  prosecutions,  the  ac- 
cused shall  enjoy  the  right  to  a  speedy  and  ])ublic  trial  by  an 
impartial  jury,  and  also  upon  the  sixt^'-lifth  section  of  the  act 
concerning  criminal  proceedings.  This  section  provides  that 
every  indictment  shall  be  tried  the  term  or  session  in  which 
issue  is  joined,  or  the  term  after,  unless  the  court  for  just  cause 
shall  allow  further  time  for  the  trial  thereof,  and  if  such  in- 
dictment be  not  so  tried  as  aforesaid,  the  defenilant  shall  be 
discharged.  This  clause,  first  enacted  in  170!),  seems  to  have 
superseded  the  provisions  of  the  seventh  section  of  the  habeas 
corpus  act  of  Car.  II.,  first  enacted  in  this  state  in  1795,  and 
still  in  our  habeas  corpus  act  (Kev.,  p.  475,  §  52).  State  v.  Gar- 
thicaite^  3  Zab.,  143. 

The  counsel  for  the  petitioner  properly  presented  the  consti- 
tutional and  statutory  provisions  together,  for  it  cannot  bo 
doubted  that  the  statute  was  drafted  to  effectuate  the  purpose 
which  the  constitutional  clause  was  designed  to  secure.  And 
it  seems  evident,  in  the  light  of  this  legislation,  that  the  remedy 
of  a  defendant  for  an  alleged  violation  of  his  constitutional 
right  lies,  in  the  first  instance,  in  the  trial  court.  Indeed,  the 
existence  of  facts  which  will  afford  a  just  cause  for  the  allow- 
ance of  further  time  is  so  peculiarly  within  the  knowledge  of 
the  trial  court  that  nowhere  else  can  the  e.xercise  of  the  discre- 
tion be  so  intelligently  discharged.  The  injunction  of  the  con- 
stitution, like  every  other  right,  can  only  become  efficient 
through  the  intervention  of  some  court,  and  the  matter  of 
speed  rests  so  much  upon  the  facility  or  embarrassment  which 
attends  each  prosecution,  that,  aside  from  the  words  of  the  stat- 
ute, discretion  in  that  court  is  absolutely  essential.  Again, 
says  Judge  Coole\',  it  is  required  that  the  trial  shall  be  speedy; 
and  here  also  the  injunction  is  addressed  to  the  sense  of  justice 
and  sound  judgment  of  the  court.     Coolej'^,  Const.  Lim.,  311. 


m 


AMERICAN  CRIMINAL  REPORTS. 


It  is,  I  imagine,  because  of  the  discretionary,  and  conse- 
quently unreviewable,  character  of  the  orders  of  the  courts  in 
granting  or  refusing  discharges  applied  for  on  the  ground  of 
delay  in  prosecution,  that  there  is  so  little  judifinl  sentiment 
expressed  upon  this  constitutional  guaranty.  Tlioso  writers 
upon  criminal  and  constitutional  law  who  would  bo  expected 
to  treat  of  tlio  extent  of  the  prisoner's  right,  and  the  motliod  of 
securing  it,  have  little  to  say  upon  the  subject.  Nor  do  the 
writers  upon  the  use  of  the  writ  of  habeas  corpus  indicate  any 
opinion  as  to  the  propriety  of  its  use  to  secure  a  disciiarge  solely 
upon  the  ground  of  a  refusal  of  a  trial  court  to  discharge  be- 
cause of  a  delay  in  prosecuting  an  indictment.  Its  use  seems 
to  have  been  recognized  in  Glover''s  Cane,  109  JIass,,  340,  where 
nothing  was  said  on  this  head,  and  the  prisoner  was  remanded. 
On  the  other  hand,  where  the  statute  provided  for  an  entire 
discharge  from  liability  to  answer  again,  and  not  merely  a  dis- 
charge from  imprisonment,  it  was  held  that  the  court  on  habeas 
corpus  would  not  review  the  action  of  the  trial  court  in  refus- 
ing a  discharge.  Kc  parte  21cGehan,  22  Ohio  St.,  442.  The 
Colorado  supreme  court  {In  re  Gurncij)  recently  decided  to  dis- 
charge because  the  statute  which  gave  the  right  to  a  trial 
Avithin  a  specilled  time  was  a  part  of  the  habeas  corpus  act. 

While  I  am  not  prepared  to  say  that  no  discharge  would  be 
ordered  upon  habeas  corpus  on  the  ground  that  a  trial  court 
abused  its  discretion  in  refusing  to  discharge,  yet  I  am  clear 
that  it  must  appear,  first,  that  application  was  made  to  the 
trial  court  for  a  discharge  upon  this  ground;  and  second,  that 
there  was  an  arbitrary  and  causeless  refusal  to  do  so,  before  a 
discharge  would  be  ordered  by  the  judicial  otHcer  hearing  the 
matter  upon  return  to  the  writ.  The  trial  court  is  controlled 
in  its  judicial  action  in  this  respect  by  the  constitutional  in- 
junction, and  will  be  presumed  to  have  had  in  view  the  rights 
of  the  prisoner  under  it.  It  will  be  presumed  that  the  court 
exercised  the  discretion  in  a  proper  judicial  spirit,  and  that  suf- 
ficient reasons  were  before  the  court  to  justify  the  delay.  And, 
even  when  all  the  facts  which  were  before  the  trial  court  are 
reproduced  before  the  judicial  officer,  it  is  not  the  province  of 
the  latter  to  review  the  exercise  of  discretion,  but  to  ascertain 
if  there  was  any  ground  upon  which  the  trial  court  could  have 
exercised  a  discretion  at  all  as  it  did.     In  the  present  case  it 


doe 

tor 

the 

pen 

wi 

of 

up( 


STATE  V.  ADAMS. 


287 


does  appear  that  an  application  was  mailo  to  the  court  of  quar- 
ter sessions  for  a  discharge  at  May  term,  1SS5.  It  appears  that 
tlie  postponements  wore  ordered  for  good  cause.  Nothing  ap- 
j)0!ir3  to  show  that  there  may  not  have  been  good  cause.  This, 
without  further  observation,  would  be  an  answer  to  the  claim 
of  tiio  petitioner.  But,  under  the  circumstances  as  they  appear 
upon  the  record,  it  seems  to  me  that  the  proceedings  were  rea- 
sonably expeditious,  and  the  trial  court  in  refusing  a  discharge 
was  right. 
The  order  of  the  justice  remanding  the  prisoner  is  affirmed. 

Note. —  Omission  of  clerk  to  certify  transcript  of  record  to  appellate 
court. —  Wlicio  a  petition  for  a  writ  of  habeas  corptm  was  InHtituted  before 
tiie  cx|iirati(in  of  the  time  limited  and  agreed  on  in  a  criminal  case  for  pre- 
])iirin{r  a  hill  of  exceptions,  the  petitioner  is  not  entitled  to  a  discharge  by 
rcasuu  of  the  omissiorl  of  the  clerk  of  the  court  in  which  the  case  was  tried 
to  certify  and  transmit  to  the  appellate  court  a  transcript  of  the  record  as 
required  by  the  Alabama  statute.    Ex  parte  Cameron,  81  Ala.,  87. 


State  v.  Adams. 

(64  N.  H.,  440.) 

Habitual  criminals'  act:  Indictment. 

.  Intoxtcatino  liquors  —  Limitation  as  to  former  conviction.—  Under 
General  Laws  of  New  Hampshire,  chapter  109,  section  36,  providing 
that  no  indictment  shall  be  found  for  any  offense  und?r  said  chapter, 
which  relates  to  the  sale  of  spirituous  liquors,  unless  committed  within 
a  year,  a  former  conviction,  charged  in  an  indictment  for  the  purpose 
of  increasing  the  punishment  ou  conviction,  need  not  have  been  had 
within  th<'  year. 

I.  Indictmen  -  Sufficient  allegation  of  former  conviction.—  Under 
Bill  of  Rijjhts  of  New  Hampshire,  article  15,  requiring  offenses  charged 
to  be  fully  and  plainly,  substantially  and  formally  described  to  the 
accused ;  and  General  Laws,  chapter  lOU,  section  23,  providing  that  a 
complaiTit  or  indictment  for  a  subsequent  offense  under  that  chapter 
need  not  particularly  set  forth  the  record  of  a  former  conviction,  but 
only  allege  briefly  that  the  accused  has  been  convicted  of  some  viola- 
tion of  said  chapter,—  it  is  enough  to  set  out  the  court,  time,  offense 
and  fact  of  conviction  on  a  plea  of  guilty. 

Exception  from  Merrimack  Countj\ 

Indictment  for  the  illegal  keeping  for  sale  of  lager  beer  on 


'^'' miff' 


288 


AMERICAN  CRIMINAL  REPORTS. 


the  27th  day  of  April,  1887,  with  a  second  count  allegin^r  a 
former  conviction  of  a  like  offense  on  the  5th  dav  of  July, 
1882,  in  the  police  court  of  Concord,  upon  a  complaint  to 
which  the  defendant  there  pleaded  guilty.  The  defendant 
moved  to  quash  the  second  count  on  the  ground  that  the  rec- 
ord of  the  former  conviction  is  too  remote  in  time  from  tlio 
present  offense,  as  alleged,  and  from  the  finding  of  the  indict- 
ment, to  constitute  a  second  offense.  The  court  denied  tho 
motion,  and  the  defendant  excepted. 

Eenry  Rohinson,  for  defendant. 

N.  E.  Martin,  solicitor,  for  the  state. 

Smith,  J.  The  keeping  of  lager  beer  for  sale  by  a  person 
not  an  agent  for  the  purpose  of  selling  spirituous  liquors  is 
punishable  by  a  fine  of  $10,  and  for  any  subsequent  offense  by 
a  fine  of  $50.  General  Laws,  ch.  109,  §  15.  No  indictment 
for  the  violation  of  this  statute  can  be  found  unless  the  offense 
was  committed  within  one  year  before  the  first  day  of  the 
court  at  which  it  is  prosecuted.  Id.,  §  30.  The  indictment  in 
this  case,  found  at  the  October  trial  term,  1887,  charges  the 
respondent  with  the  illegal  keeping  for  sale  of  lager  beer,  April 
27,  1887,  and  alleges  a  former  conviction  .of  a  like  offense, 
July  5,  1882,  in  tlie  police  court  of  the  city  of  Concord,  upon 
a  complaint  to  which  he  pleaded  guilty.  The  motion  to  quash 
is  put  upon  the  ground  that  neither  the  first  offense,  nor  his 
conviction  thereof,  was  within  one  year  before  the  first  day  of 
the  term  when  this  indictment  was  found.  If  this  is  a  good 
reason  for  quashing  the  indictment  it  must  be  because  the  first 
offense  is  a  part  of  that  charged.  But  no  part  of  the  offense 
charged  in  this  indictment  was  committed  in  1882.  Tho  keep- 
ing for  sale  in  that  year,  and  the  alleged  keeping  for  sale  in 
1887,  are  separate  and  complete  acts  and  separate  offenses.  If 
the  allegation  of  a  former  conviction  should  be  stricken  out, 
the  change  v  ..lild  not  render  the  offense  charged  less  com- 
plete. It  is  true,  the  heavier  sentence  for  a  subsequent  offense 
cannot  be  imposed  in  the  absence  of  an  allegation  and  proof 
of  a  prior  conviction.  In  some  sense,  therefore,  the  additional 
punishment  may  be  said  to  be  a  consequence  of  the  first  con- 
viction; but  it  is  not  a  necessary  consequence.    It  can  only 


STATE  V.  ADAMS. 


239 


arise  on  a  second  conviction;  and  the  offender,  being  apprised 
of  it  in  advance,  is  left  free  to  brave  or  avoid  it.  liund  v. 
Com.,  9  Grat.,  743.  Lord  Campbell,  in  lieff.  v.  ClarJc,  Dears. 
Cr.  Cas.,  198,  observed :  "  A  statement  of  a  previous  conviction 
does  not  charge  an  offense.  It  is  only  the  averment  of  a  fact 
which  may  affect  the  punishment.  The  jury  do  not  find  the 
person  guilty  of  the  previous  offense;  they  onl}'  find  that  ho 
was  previously  convicted  of  it,  as  an  historical  fact."  The 
statute  merely  makes  a  distinction  in  the  punishment  inflicted 
for  a  fii'st  and  a  subsequent  conviction.  The  offense  is  the 
same  in  either  case.  Tlie  offender  is  not  subjected  to  increased 
punishment  for  the  first  violation,  nor  is  he  a  second  time  put 
in  jeopardy  for  it.  The  heavier  punishment  is  for  persisting 
in  wrong  by  repeating  the  offense.  People  v.  Stanley,  47  Cal., 
113:  Hand  v.  Com.,  9  Grat.,  743;  Ross'  Case,  2  Pick.,  165;' 
Plunihly  V.  Com.,  2  Mete,  413;  1  Bish.  Crim.  Law  (6th  ed.), 
965.  The  punislimont  is  more  severe  because  of  the  character 
of  the  offender;  because  the  discipline  of  his  former  punish- 
ment has  failed  to  enforce  his  obedience  to  the  law  which  he 
had  previously  violated;  and  because  the  reforming  influence 
of  the  previous  sentence  has  been  tried  in  vain.  The  statute 
does  not  punish  him  anew  for  the  prior  offense,  but  to  com[)el 
obedience  by  imposing  a  severe  penalty  when  the  milder  sen- 
tence has  failed  in  that  respect.  Com.  v.  Molt,  21  Pick.,  492; 
Bump  V.  Com.,  8  Mete,  533;  Phillips  v.  Com.,  3  Mete,  588;  1 
Bish.  Crim.  Law  (6th  ed.),  §§  959-965.  Even  a  pardon  of  the 
first  does  not  prevent  the  infliction  of  the  heavier  punishment 
on  the  second  or  subsequent  offense.  Mount  v.  Com.,  2  Duv. 
(Ky.),  93. 

It  is  objected  that  the  offense  charged  in  the  second  count 
is  not "  fully  and  plainly,  substantially  and  formally  described" 
to  the  respondent  as  required  by  article  15  of  the  New  Hamp- 
shire Bill  of  Rights.  The  provision  of  section  23,  chapter  109, 
General  Laws,  that  it  shall  not  be  requisite  to  set  forth  par- 
ticularly the  record  of  a  former  co'.iviotion,  but  that  it  shall 
be  sufficient  to  allege  briefly  thao  the  person  complained 
against  has  been  convicted  of  some  violation  of  said  chapter, 
is  to  be  construed  as  to  give  full  effect  to  the  constitutional 
protection.  The  former  conviction  being  a  part  of  the  de- 
scription and  character  of  the  offense  intended  to  be  punished 


m 


UMM 


240 


AMERICAN  CRIMINAL  REPORTS. 


because  of  the  higher  penalty  imposed,  it  must  be  alleged,  and 
we  think  it  is  sufficiently  described,  when,  as  in  this  case,  the 
court,  time,  offense  and  fact  of  conviction  on  a  plea  of  guilty 
are  set  forth.  The  respondent  cannot  fail  to  understand  from 
tlie  indictment  that  ho  is  charged  with  an  offense  aggravated 
by  its  repetitious  character,  and  he  is  informed  where  the  rec- 
ord of  his  former  conviction  may  be  found.  lie  is  not  left  in 
doubt  what  the  evidence  upon  that  part  of  the  case  will  be. 
The  prior  conviction  can  be  proved  only  by  the  record.  Con). 
V.  IMlet/,  3  Gray,  458,  459.  The  record  is  conclusive.  None 
of  the  facts  recited  in  it  are  open  to  be  controverted.  As  the 
offense  charged  is  shown  to  be  a  second  one,  by  the  record 
and  proof  of  personal  identity,  the  facts  constituting  the  for- 
mer offense  need  not  be  alleged  in  this  indictment.  The  jury 
do  not  inquire  whether  he  was  guilty  of  the  offense  charged 
in  the  former  indictment,  but  whether  he  is  the  person  who  was 
convicted. 

This  question  is  not,  perhaps,  now  open  to  the  respondent,  it 
not  having  been  raised  at  the  trial.  So-  far  as  appears,  the 
evidence  of  former  conviction  was  received  without  objection, 
but  as  it  has  been  argued  we  have  considered  it.  Exceptions 
overruled. 


Allen,  J.,  did  not  sit.    The  others  concurred. 


Shiff  v.  State. 


mi 


(84  Ala.,  454.) 
Hawkers  and  peddlers:  Indictment  —  AmendmeHt, 

1.  Indictment— AMENDiiEXT— MisxoMER.— Under  code  of  Alabama  of 
1880,  section  4il89,  providing  that  an  indictment  may  be  amended,  "  with 
the  consent  of  tlie  defendant,  when  tiie  name  of  the  defendant  is  in- 
correctly stated,"  it  is  reversible  error  to  allow  an  indictment  to  be 
amended  so  as  to  correct  ■  misnomer  set  up  by  the  defendant's  plea 
in  abatement,  where  the  record  does  not  show  affirmatively  that  de- 
fendant consented  to  the  amendment.' 

^ 

'  See  note. 


SHIFF  V.  STATE. 


241 


2.  Hawkers  and  peddlers  —  Sellling  without  license  —  Evidence. — 
On  the  trial  of  an  inrlictment  for  carrying  on,  without  a  license,  the 
business  of  a  transient  or  itinerant  dealer  of  goods,  evidence  of  sales 
made  in  other  counties  than  that  named  in  the  indictment  is  admis- 
sible for  the  purpose  of  showing  the  itinerant  nature  of  the  business. 

Appeal  from  Circuit  Court,  Cherokee  County. 

The  appellant  was  indicted  for  engaging  in  or  carrying  on 
the  business  of  a  transient  or  itinerant  dealer  in  goods,  wares 
or  merchandise  without  a  license.  The  indictment  was  found 
against  "  Mike  "  Shiff.  The  appellant  pleaded  in  abatement  a 
misnomer;  his  name  being  "Ike"  ShiflF.  The  solicitor  con- 
fessed the  plea,  and  "  by  leave  of  the  court "  amended  the  in- 
dictment accordingly.  The  defense  set  up  on  the  trial  was  a 
peddler's  license  issued  to  Ike  Shiff  &  Co.  There  was  evidence 
tending  to  show  that  the  defendant  had  proclaimed  his  goods 
on  the  street  in  the  town  of  Centre,  Cherokee  county,  had  not 
sold  them  to  the  highest  bidder, —  not  asking  for  a  highest 
bidder,  but  did  sell  them  at  a  uniform  price;  that  he  had  sold 
his  goods,  under  similar  license,  in  the  counties  of  De  Kalb, 
Etowah  and  Talledega,  but  that  he  had  sold  his  goods  nowhere 
else  in  the  county  of  Cherokee  than  in  the  town  of  Centre. 

Mattheios  <&  Dniileh,  for  appellant. 

T/ioa.  N.  McCldlan,  attorney -general,  for  the  state. 

SoMKKViM.K,  J.  The  statute  permits  an  indictment  to  be 
amended,  "  with  the  consent  of  the  defendant,  when  the  name 
of  the  delVndant  is  inconrctly  stated,  or  when  rny  person, 
property  or  matter  llicroin  stated  is  incorrectly  described." 
Code  of  ISSO.  jv  43s!>.  It  is  the  obvious  moaning  of  this  stat- 
ute that  an  indictment  shall  not  be  amended,  even  in  an 
immaterial  inattei",  villiout  the  consent  of  the  derendant,  as  is 
the  rul(!  of  the  common  law,"  Orego)')/  v.  Sfiffr,  4(1  Ala.,  151 ;. 
Jahn.sdii  V.  State,  id.,  212.  The  present  indictment  was  amended 
by  the  solicitor  so  as  to  correct  a  misnomer  set  up  by  i)lea  in 
abatement  on  the  part  of  the  defendant.  The  judgment  entry 
recites  that  it  was  done  ''  by  leave  of  the  court."  It  nowhere 
a|)pears  from  the  record  that  the  consent  of  the  defendant  was 
obtained,  unless  such  consent  can  be  implied  by  his  failure  to 
dissent.  It  is  our  opinion  that  the  record  should  show  allirma- 
tively  that  the  consent  of  the  defendant  was  given  to  tho 
Vol.  VII -10 


242 


AMERICAN  CRIMINAL  REPORTS. 


amendment.  Mere  silence  or  failure  to  object  ought  not  to 
operate  as  a  forfeiture  of  the  defendant's  right  to  be  tried  on 
the  indictment  in  the  form  it  has  been  framed  b\'  the  grand 
jury.  It  would  be  an  unsafe  rule  to  infer  consent  from  mere 
silence  on  the  part  of  the  defendant  in  such  cases,  and  such  a 
practice  would  not  be  in  harmony  with  our  past  rulings  on 
other  questions  of  an  analogous  character.  Flanagan  v.  State, 
19  Ala.,  546;  S^icer  v.  State,  69  Ala.,  159;  Si/lvcster  v.  State, 
71  Ala.,  17.     For  this  error  the  judgment  must  be  reversed. 

The  defendant  in  this  case  was  convicted  of  tlie  offense  of 
engaging  in  or  carrying  on,  without  a  license  and  contrary  to 
law,  the  business  of  a  transient  or  itinerant  dealer  in  goods, 
wares  or  merchandise  other  than  tliat  of  a  licensed  peddler  or 
traveling  agent  of  a  wholesale  dealer  in  said  articles,  making 
sales  thereof  b}^  sample.  Code  of  ISSO,  g  629,  subd.  34.  He 
justified  under  a  peddler's  license,  which  was  introduced  in 
evidence,  and  conferred  on  the  ])artnership  of  Ike  Shiff  it 
Co.,  of  which  he  was  a  member,  full  authority  to  engage  in 
the  business  of  peddling  on  foot  in  the  county  of  Chero- 
kee, where  the  license  was  taken  out  and  the  indictment  was 
found.  Code  of  1880,  §  629,  subd.  31.  If  the  facts  in  evi- 
dence showed  that  the  defendant  was  a  peddler  on  foot,  in 
the  popular  signification  of  that  term, —  that  he  walked  from 
house  to  house,  or  from  place  to  place,  carrying  his  goods 
with  him  and  selling  them  by  retail, —  then  his  peddler's 
license,  issued  to  the  partnership  of  which  he  was  a  member, 
would  be  a  full  protection  to  him.  Code  of  ISSO,  §§  631, 
632;  Thoiupson  v.  State,  37  Ala.,  151;  Lo)ifj  v.  /State,  27  Ala., 
32.  But  if  he  was  not  a  peddler,  but  a  transient  or  itinerant 
dealer  in  goods,  other  than  a  licensed  peddler  or  traveling 
agent  of  a  wholesale  dealer,  selling  by  sample,  and  if  he  en- 
gaged in  or  carried  on  the  business  of  such  transient  or  itiner- 
ant dealer  in  the  county  of  Cherokee  without  a  license  there- 
for, as  required  by  subdivision  34  of  section  629  of  the  present 
code  (1880),  and  within  twelve  months  before  the  finding  of 
the  indictment,  he  would  be  guilty  as  charged,  and  be  subject 
to  a  fine  of  three  times  the  amount  of  the  state  license,  which 
in  this  case  is  $50.  Code  of  1880,  g  3892;  id.,  §  629,  subd.  34; 
Randolph  v.  Yellow  Stone  Kit,  83  Ala.,  471.  In  the  latter 
aspect  of  the  case  it  would  be  competent  to  prove  that  the  de- 


PRESLEY  V.  STATE. 


243 


fendiint  had  in  person  made  sales  in  other  counties,  and  had 
gone  from  one  county  to  another  in  this  state,  dealing  in 
goods,  wares  and  merchandise.  This  would  be  relevant  for 
the  purpose  of  showing  that  he  was  a  transient  or  itinerant 
dealer;  that  he  traveled  from  place  to  place  while  engaged  in 
his  business  of  selling.  It  would,  in  other  words,  show  the 
itinerant  nature  of  such  business,  and  that  his  motive  in  pur- 
suing it  was  for  a  profit  or  as  a  means  of  livelihood,  which  is 
a  necessary  element  of  engaging  in  any  business,  occupation 
or  profession.  I/arris  v.  State,  50  Ala.,  127;  Will  v.  Slate,  52 
Ala.,  19.  Of  this  oflFenso  the  defendant  could  be  convicted 
without  proving  that  he  had  sold  goods  in  other  places  in 
the  county  of  Cherokee  other  than  at  Centre,  the  county  seat, 
where  was  located  his  place  for  making  sales,  if  we  correctly 
understand  the  bill  of  exceptions.  There  could  be  no  lawful 
conviction,  however,  unless  he  engaged  in  or  carried  on  the  busi- 
ness by  some  act  done  in  the  piosecution  of  it  in  the  county 
of  Cherokee. 

The  judgment  is  reversed  for  the  error  above  pointed  out, 
and  the  cause  is  remanded  for  a  new  trial. 

Note.— See  Dickinson  v.  State,  5  Am.  Cr.  E.,  297,  and  note;  also  Ex 
parte  Bain,  6  Am.  Cr.  R.,  122. 


Pkesley  V.  State. 

(24  Tex.  App.,  494.) 

Indictment:  "  Aperson  unknown  to  grand  jury" —  Variance. 

Indictment  — Person  unknown  — Variance.— The  indictment  upon 
which  defendant  was  convicted  for  fraudulently  disposing'  of  mortgaged 
property  — a  horse  —  alleged  that  the  sale  was  to  a  person  unknown  to 
the  grand  jury.  The  evidence  showed  that  lie  was  either  known,  or 
could  have  been  known  by  the  exercise  of  sliglit  diligence.  Held  that, 
as  the  allegation  was  not  sustained  by  the  proof,  the  conviction  could 
not  be  supported.! 

Appeal  from  District  Court,  Freestone  County ;  Hon.  S.  K. 
Frost,  Judge. 

•  See  note. 


:,-l,-;':'^ 


M.J:-.. 


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i#--  '^ 


244 


AMERICAN  CRIMINAL  REPORTS. 


Indictment  for  fraudulently  disposing  of  mortgaged  prop- 
erty. 

Kirven^  Gardner  &  Etheredge,  for  appellant. 
W.  L.  Davidson,  assistant  attorney-general,  for  the  state. 

Hurt,  J.  This  conviction  was  for  fraudulently  selling,  trad- 
ing and  disposing  of  certain  mortgaged  property.  It  is  alleged 
in  ihe  indictment  that  the  property  was  sold,  traded  and  dis- 
posed of  to  a  certain  person  whose  name  is  to  the  grand  jurors 
unknown.  Upon  the  trial  it  was  shown  that  the  property  —  a 
horse  —  Avas  traded  to  one  Ike  Thomas,  and  this  fact  was  evi- 
dently known  to  the  grand  jury,  or  could  have  been  known  by 
the  smallest  degree  of  diligence.  If  the  name  of  the  person 
to  whom  the  property  was  sold  or  traded  was  known  to  the 
grand  jury,  it  was  essential  that  it  should  have  been  given  in 
the  indictment.  The  assistant  attorney-general  contends  that, 
since  the  question  is  the  intent  to  defraud,  it  mutters  not  to 
whom  the  property  was  sold  or  traded.  While  this  is  true,  the 
indictment  should  nevertheless  inform  the  accused  of  the  name 
of  the  person  to  whom  the  property  was  sold  or  traded.  Jiui^h 
V.  State,  1  Tex.,  455;  Bunch  v.  State,  id.,  GOO;  Schwartz  v.  State, 
25  Tex.,  764. 

The  indictment  in  this  case  is  sufficient;  but  the  proof  fails 
to  sustain  the  allegation  that  the  name  of  the  person  to  wliom 
the  property  was  sold  or  traded  was  unknown  to  the  grand 
jury.  As  above  stated,  the  proof  shows  bc3'ond  a  doubt  tluit 
the  horse  was  traded  to  Ike  Thomas,  wliicli  fact  could  have 
been  ascertained  bv  the  use  of  anv  diligence  whatever.  The 
judgment  is  reversed  and  the  cause  remanded. 

'i^otE.— Variance  —  Middle  name  or  initial.— In  Com.  x\  Buckley,  145 
Mass.,  lyi,  defeiiilant  was  tried  on  an  indictment  whicli  charged  tliat  de- 
fendant, etc.,  did  threaten  to  accuse  one  Frank  I'j.  Wliiti?  of  arson,  but  it 
appeared  tiiat  the  person  designated  as  Frank  E.  Wliite  was  Frank  A. 
White.    Held,  that  the  variance  was  iatal. 

Homes,  J.,  delivering  the  opinion  of  the  court,  says: 

"  The  name  of  the  person  tlireateiied  is  necessary  to  tlic  identity  of  the 
offense  charged  in  the  indictment,  and  therefore  Jiiust  be  proved  as  set 
forth.  Com.  v.  Mehan,  11  Gray,  321.  It  is  settled  in  tiiis  cmmonwealth 
that  a  middle  name  or  initial  is  jiart  of  the  name,  and  a  variance  in  regard 
to  it  is  fatal.  Com.  v.  Perkins,  1  Pick.,  388;  Cum.  r.  Hull,  3  Pick.,  262; 
Com.  V.  Shearman,  11  Cush.,  546.    The  ruling  that  tlierc  was  no  vuriance 


STATE  V.  IVEY. 


245 


if  Frank  A.  White  was  the  person  called  Frank  E.  Wliite  in  the  indictment 
probably  went  upon  the  ground  that  tlie  E.  might  be  rejected  as  surplus- 
age, as  is  held  in  some  states.  It  cannot  be  said  as  a  matter  of  law  that 
A.  and  E.  are  the  same.  There  was  no  evidence  that  the  party  was  ever 
called  Frank  E.  White."    See,  also,  Jonea  v.  State,  25  Tex.  App.,  621. 

Description  of  stolen  goods.—  Under  Code  of  Alabama  of  1886,  section  4368, 
which  provides  "  that  the  indictment  must  state  the  facts  constituting  the 
offense  in  ordinary  and  concise  language,  without  prolixity  or  repetition,  in 
such  a  manner  as  to  enable  a  person  of  ordinary  understanding  to  know 
what  is  intended,"  the  indictment  charging  the  larceny  of  "one  gold 
watch  "  is  a  sufficient  description  of  a  watch  which  the  proof  shows  to  be 
ten-carat  gold ;  it  appearing  that  such  a  watch  is  commonly  called  a  gold 
watch,  though  it  is  not  so  called  by  jewelers.    Pfister  v.  State,  84  Ala.,  438. 


State  v.  Ivet. 

(100  N.  C,  639.) 

Indictment  :  Error  to  return  second  without  recalling  ivitnesses. 

1.  Indictment  — Second  retukn  —  Duty  to  examine  witnesses.— A  bill 

of  indictment  was  sent  to  the  grand  jury,  and  upon  examination  of 
witnesses  it  was  returned  a  "true  bill."  The  solicitor  for  the  state 
concluding  it  did  not  charge  the  indictment  intended,  it  was  quashed, 
whereupon  another  bill  was  sent  to  the  grand  jury,  which  was  re- 
turned a  '*  true  bill,"  without  any  further  examination  of  witnesses. 
Held,  that  it  should  be  quashed. 

2.  In  such  a  case  the  second  cannot  be  taken  as  an  additional  count  of  the 

first  indictment. 


Appeal  from  Superior  Court,  Harnett  County ;  Hon.  James 
H.  Merrimon,  Judge. 

On  Tuesday  of  the  term  of  the  court,  a  bill  of  indictment 
was  sent  to  the  grand  jury,  and,  upon  the  examination  of  wit- 
nesses duly  sworn  before  them,  they  returned  the  same  into 
court  a  "  true  bill."  The  solicitor  for  the  state  conceded  that 
this  indictment  was  insufficient,  did  not  charge  the  offense  in- 
tended, and  it  was  quashed  by  the  court.  Thereupon  a  fresh 
bill  was  sent  to  the  grand  jury  on  Thursday  of  the  term,  which 
they  returned  into  court  a  "true  bill,"  without  examining  any 
of  the  witnesses  indorsed  upon  the  same,  believing  they  had  a 
light  to  do  so  because  they  had  already  examined  the  wit- 
nesses on  the  tirst  bill  sent  to  them.    These  facts  appearing, 


246 


AMERICAN  CRIMINAL  REPORTS. 


■:;'li'?''' 


mm^ 


upon  the  motion  of  the  defendant  the  court  quashed  the  in- 
dictment, and  gave  judgment  for  him,  from  which  the  solicitor 
appealed  to  this  court. 

T/ie  Attorney- General  and  3[r.  J.  B.  Bachelor^  for  the  state. 
F.  P.  Jonen,  for  defendant. 

Merrimon,  J.  In  criminal  procedure,  properly  speaking,  a 
presentment  by  a  grand  jury  is  the  official  notice  taken  by 
them  of  any  criminal  offense  from  their  own  knowledge  or 
observation,  or  the  same  from  any  member  of  their  body,  or 
from  the  evidence  of  any  competent  witness,  duly  sworn,  given 
before  them,  or  any  proper  evidence,  in  the  absence  of  a  bill 
of  indictment  for  the  offense  laid  before  them.  It  should  be 
in  writing  and  contain  a  summary  of  the  accusation,  the  names 
of  the  person  or  persons  presented,  and  the  names  of  the  wit- 
nesses who  can  give  evidence  of  the  facts  of  the  offense.  It  is 
not  necessary  that  it  should  be  signed  by  all  the  grand  jury, 
or  at  all,  though  usually  it  is  signed  by  the  foreman,  but  it 
should  be  delivered  to  the  court  in  their  presence  by  their  fore- 
man, who  is  their  official  organ.  Thus  returned,  it  passes  into 
the  record  of  the  court,  and  becomes  effectual  and  the  begin- 
ning of  the  prosecution.  It  requires  no  further  authentication. 
It  is  such  return  into  court  and  putting  it  of  record  that  gives 
it  efficient  force.  State  v.  Cain,  1  Hawks,  352;  State  v.  Cox,  6 
Ired.,  440;  4  Bl.  Comm.,  301;  1  I3ish.  Crim.  Proc,  §  731. 

Usually,  a  bill  of  indictment  is  framed  upon  the  present- 
ment by  the  solicitor  for  the  state,  and  sent  before  the  grand 
jury  to  be  acted  upon  by  them.  The  names  of  the  witnesses 
to  be  examined  are  written  on  the  back  of  the  bill,  and  they 
must  be  sworn  in  open  court,  or  by  the  foreman  of  the  grand 
jury,  as  allowed  by  the  statute  (Code,  §  1742),  before  they  are 
examined.  But  a  presentment  is  not  essential  to  a  bill  of  in- 
dictment, nor  is  it  necessarily  initiatory  to  a  criminal  prosecu- 
tion. The  solicitor  for  the  state  —  an  important  officer,  in 
whom  reposes  a  high  trust  —  may  lay  before  the  grand  jury 
such  bills  of  indictment  as  in  his  sound  discretion  he  may  deem 
proper,  acting  upon  trustworthy  information.  He  should  care- 
fully guard  himself  in  the  exercise  of  his  office  against  imposi- 
tion and  persons  who  seek  to  gratify  their  spleen  or  malice. 


STATE  V.  rVEY. 


247 


The  indictment  is  the  formal  written  accusation  of  one  or  more 
persons  of  a  crime  or  misdemeanor  preferred  to  and  presented 
upon  their  oath  by  a  grand  jury.  In  strict  legal  parlance  it  is 
not  so  called  until  the  bill  has  been  found  "  a  true  bill  "  by  the 
grand  jury;  until  then  it  is  called  simply  a  "bill.''  4  131. 
Conim.,  302;  Arch.  Crim.  PI.,  1,  58,  59.  The  action  of  the 
grand  jury  upon  bills  of  indictnient  is  very  important  to  Indi- 
vid tui  Is  and  the  public.  On  the  one  hand,  the  safety,  good 
order  and  well-being  of  society  are  to  be  affected  for  good  or 
evil  by  it,  and,  on  the  other,  a  person  should  not  be  causelessly 
accused  of  crime.  This  should  be  done  upon  solemn  consid- 
eration, and  lor  reasonably  apparent  cause.  It  may  be  of 
great  consequence  to  the  accused  whether  the  accusation  be 
well  or  ill  founded.  Such  bills  are  not  to  be  treated  lightly, 
but  seriously;  the  action  of  the  grand  jury  must  be  based, not 
merely  upon  conjecture,  suspicion,  mere  information  that  they 
or  a  member  or  members  of  their  body  nuiy  know,  but  upon 
the  testimony  of  witnesses  duly  sworn,  or  other  evidence  that 
comes  before  them  duly  authenticated.  If  a  grand  juror  has 
knowledge  of  facts  material,  he  should  be  sworn  jus  a  witness 
and  examined  as  such.     State  v.  Cain,  1  Hawks,  .'352. 

The  grand  jury  is  an  inquisitot-ial  and  accusing  body;  they 
hear  only  the  evidence  on  behalf  of  the  prosecution.  The 
lindingof  the  bill  of  indictment  is  in  the  nature  of  an  inquiry 
or  accusation,  which  is  afterwards  to  be  tried  when  the  accused 
will  have  opportunity  to  make  defense.  They  must  inquire 
whether  there  be  sulBcient  cause  to  call  upon  the  accused  party 
to  answer,  but  such  inquiry  must  be  founded  upon  proper  evi- 
dence. They  do  not  act  in  the  light  of  evidence  the  accused 
may  prfxluce  in  his  behalf  upon  his  trial,  but  they  should  be 
satisfied  of  the  truth  of  the  charge  contained  in  the  bill  of 
indictment,  so  far  as  the  evidence  goes.  It  is  essential  that 
witnesses  should  be  sworn  and  competent.  State  v.  Fellows^  2 
Ilay.  (N.  C),  520.  It  was  held,  when  the  indictment  was  found 
upon  the  single  testimony  of  an  incompetent  witness,  it  should 
be  quashed.  And  it  has  been  repeatedly  held  that  the  indict- 
ment should  be  quashed  where  the  same  was  found  upon  the 
evidence  of  witnesses  not  sworn.  State  v.  Cain,  1  Hawks,  352; 
State  V.  lioherts,  2  Dev.  &  B.,  540;  State  v.  Lanier,  90  N.  C,  714. 


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248 


AMERICAN  CRIMINAL  REPORTS. 


If,  as  in  this  case,  the  indictment  be  found  to  be  defective, 
a  fresh  bill  may  be  sent  at  the  same  term  before  the  same 
grand  jury  that  found  the  insufficient  indictment  and  tliey  may 
act  upon  it.  State  v.  Harris,  91  N.  C,  C56.  But  they  cannot 
do  so  basing  their  action  entirely  upon  what  witnesses  testi- 
fied to  when  they  had  the  first  bill  under  consideration  witli- 
out  a  re-examination  of  the  witnesses,  or  tiie  examination  of 
other  witnesses,  or  hearing  other  proper  evidence  before  them. 
This  is  so  because  the  fresh  or  second  bill  is  as  to  them  a  new 
and  independent  one,  different  in  some  of  its  features  from  the 
first  indictment;  it  charges  the  offense  in  a  different  way  to  a 
greater  or  less  extent;  it  may  charge  a  different  offense  alto- 
gether. The  witnesses  might  testify  differently  from  what 
they  at  first  did,  in  view  of  the  new  bill;  they  might  modify 
what  they  at  first  said;  they  might  testify  as  to  additional 
facts;  they  may  have  testified  falsely  at  first;  the}'  might  tes- 
tify truly  Upon  re-examination.  As  to  the  second  bill,  there 
was  no  evidence  before  the  grand  jury  at  all  in  contemplation 
of  law.  They  must  act  upon  evidence  taken  in  respect  to  the 
bill  of  indictment  before  tliem.  This  is  essential  in  the  intelli- 
gent and  fair  discharge  of  their  important  dut}'  to  give  the 
evidence  just  application,  point  and  force,  and  to  identify  the 
witnesses  with  and  render  them  responsible  for  what  they  tes- 
tify to  in  the  course  of  the  prosecution.  They,  in  this  case, 
did  not  testify  as  to  the  new  bill. 

It  is  said  that  the  new  bill  was  to  be  taken  in  connection 
with  the  first  indictment,  as  an  additional  count  in  it,  in  ac- 
cordance with  what  was  said  and  held  in  Stute  v.  Johnston,  5 
Jones  (N.  C),  221.  It  appears  that  the  first  indictment  was 
quashed  before  the  new  bill  was  sent  to  the  grand  jury;  but 
if  this  were  otherwise,  treating  the  new  bill  as  an  additional 
count,  it  was  embodied  in  a  sej»arate  and  distinct  bill,  consid- 
ered, acted  upon  and  presented  by  the  grand  jury  at  a  differ- 
ent time.  Thej'  could  not  consider  it  in  connection  with  and 
as  part  of  the  first  indictment;  the  latter  was  before  the  court 
and  had  passed  into  the  record.  They  might  have  ignored  the 
new  bill  without  reference  to  the  first  indictment.  Moreover, 
treating  a  new  indictment  curing  defects  in  a  former  one  as 
an  additional  count  in  the  latter  is  allowed  by  a  rule  of  prac- 


ANDREWS  V.  PEOPLE. 


249 


tice  that  in  no  way  applies  to  or  affects  the  action  of  the  grand 

jury. 

There  is  no  error.    Let  this  opinion  bo  certiGed  to  the  supe- 
rior court  according  to  law.    It  is  so  ordered. 


Andrews  v.  People. 


(117  111.,  195.) 

Indictment:  Receiving  stolen  goods  —  Indorsing  icitnesses  thereon  —  When 
election,  upon  which  of  several  counts,  will  be  required  —  Evidence  — 
Admissions  —  Instructions. 

1.  Indictmknt  —  WiTNEssiis  INDORSED  ON.— Tlie  roquirement  of  the  Stat- 

ute that  the  foiouian  of  the  grand  jury  slmll  iiiitorse  upon  the  back 
of  an  indictment  the  names  of  the  witnesses  upon  vvliose  testimony 
the  indictment  is  found  is  mandatory,  and  a  disro^^ard  theviof  would 
be  fatal  to  tliu  indictment.  The  indictment,  in  this  case,  was  indorsed 
with  tlio  names  of  live  witnesses,  below  which  apjjoared  the  recital: 
"  For  otlier  witnesses,  see  Otf.  Palmer."  Tliis  indorsement  is  held 
suilicient  and  tlie  recital  harmless. 

2.  Inuictmknt  —  Skveral  counts  — When  election  rkqim red, — Where 

two  or  more  offenses  are  chart;ed  in  several  counts,  joined  in  one  in- 
dictment, and  such  offenses  may  be  parts  of  one  and  tlie  same  trans- 
action, and  of  such  a  nature  that  ti>e  delendant  may  he  guilty  of  both, 
the  prosecution  will  not  be  required  to  elect  on  svhicli  count  they  will 
proceed.  Election  will  be  required  only  where  distinct  offenses,  not 
parts  of  the  same  transaction,  are  involved.' 

3.  Evidence  —  Admissions  —  Conviction  of  acci'sed  on  — Corpus  de- 

licti.—  Where  a  crime  has  been  commilted,  the  admissions  of  a  party 
charged  with  the  crime,  deliberately  made,  are  admissible,  and  '.he 
jury  may  convict  on  such  evidence  if  they  believe  it  sufficient. 

4.  Instructions  — Repetition.— The  court  is  not  bound  to  give  instruc- 

tions as  asked  where  the  substance  of  them  has  already  been  given. 

Writ  of  Error  to  Criminal  Court  of  Cook  County;  Hon.  Rol- 
lin  S.  "VVilliainson,  Judge,  presiding. 

John  LijJe  King,  for  the  plaintiff  in  error. 
George  Hunt,  attorney-general,  for  the  people. 

Craig,  J.     This  was  an  indictment  against  Andrew  Andrews, 
containing  two  counts.     In   the   tirst  count  defendant   was 

I  See  note. 


260 


AMERICAN  CRIMINAL  REPORTS. 


<^:   111' 

t  J .,  ^  ',?,-,  t 


■J' 


i^y.-.U 


charged  witli  larceny,  and  in  tho  second  with  rcceiviii_nj  stolen 
goods.     On  a  trial  before  a  jury  the  defendant  was  found 
guilty  as  char^^ed  in  tho  second  count  of  tho  indictment,  and 
was  sentenced  to  eight  years'  imprisonment  in  the  penitentiary. 
Several  alleged  errors  are  relied  upon  to  reverse  tho  judgment. 
On  the  back  of  tiio  indictment  is  indorsed:  "  A  true  bill. 
J.  .T.  CoKcoKAN,  Foreman  of  the  (J rand  Jury;"  and  "Wit- 
nesses: Cliarles  P.  Crane,  Lem.  Flershem,  Peter  Lapp,  Off. 
Cosgrove,  Off.  Palmer.     See,  for  other  witnesses.  Off.  Cosgrovo 
and  Palmer."     "  Filed  Juno  10, 18S5.     Jonx  Stkimikn-s,  Clerk." 
The  defendant  entered  a  motion  to  tjuash  tho  indictment  on 
the  ground  that  the  foreman  of  the  grand  jury  failed  to  note 
thereon  tho  names  of  the  witnesses  upon  whoso  evidence  the 
indictment  was  found,  as  required  b}'  the  statute.    Tho  court 
overruled  the  motion,  and  this  is  tho  first  error  relied  upon  to 
reverse  the  judgment.   Section  17,  cliapter  78,  Keviscd  Statutes, 
provides  that  "  the  foreman  of  the  grand  jury  shall,  in  each 
casein  wliich  a  true  bill  shall  be  returned  intocourt,  note  thereon 
the  name  or  names  of  the  witnesses  upon  whoso  evidence  the 
same  shall  have  been  found."     It  is  contended  that  the  state- 
ment in  the  indictment, "  See,  for  other  witnesses.  Off.  Cosgrove 
and  Palmer,"  was  not  a  compliance  with  the  statute,  and  vitiates 
the  indorsement  of   the  names  of  witnesses  required  by  the 
law.     The  statute  requiring  the  foreman  of  the  grand  jury  to 
note  on  the  indictment  the  names  of  the  witnesses  upon  whose 
evidence  the  same  is  found  is  mandatory,  and  a  disregard  of 
this  requirement  would,  no  doubt,  bo  sufficient  ground  to  au- 
thorize the  court,  upon  proper  motion,  to  quash  the  indictment. 
3fclunnei/  v.  T/te  People,  2  (iilman,  552.     The  object  of  the 
statute  is  for  the  benefit  of  the  accused,  who  is  entitled  to 
know  the  names  of  those  upon  whose  evidence  tho  indictment 
may  have  been  found.     It  will,  however,  be  observed  that  this 
statute  does  not  require  that  the  names  of  all  witnesses  who 
shall  be  called  to  testify  on  the  trial  of  the  accused  shall  be 
noted  on  the  indictment,  but  the  requirement  of  the  law  is  con- 
fined to  the  names  of  those  upon  whose  evidence  the  indict- 
ment may  be  found.     Here  the  names  of  five  witnesses  were 
noted  on  the  indictment  by  the  foreman  of  the  grand  jury,  as 
required  by  the  statute,  and  the  presumption  is,  in  the  absence 
of  any  contrary  showing,  that  they  were  the  witnesses,  and 


ANDREWS  V.  PEOPLE. 


851 


the  only  witnesses,  upon  whoso  evidence  the  indictment  was 
found.  It  is  true  there  is  noted  or  indorsed  on  the  indictment, 
"See,  for  otiier  witnesses,  Off.  Cosgrovo  and  Palmer;"  but 
from  this  stutement  no  presumption  can  arise  that  witnesses 
other  than  those  whose  names  are  noted  testified  before  the 
grand  jury.  IJefore  this  stateinent  appears,  the  noting  of  the 
names  of  witnesses  on  the  indictment  re(|uired  by  statute  is  full 
and  complete,  and  that  noting  is  in  no  manner  contradicted  or 
impaired  by  this  statement.  The  statement  may  bo  rejected 
entirely,  as  no  part  of  the  indictment,  or  it  may  bo  treated  as 
a  mere  memorandum,  for  the  Lenelit  of  tlie  slate's  attorney  in 
finding  other  witnesses  wliich  were  not  before  the  grand  jury, 
wiiich  in  no  manner  related  to  the  statiitorv  dutv  of  the  fore- 
man  of  the  grand  jury  in  noting  the  names  of  the  witnesses 
on  the  indictment.  IJut,  however  this  statement  may  be  re- 
garded, when  the  foreman  of  the  grand  jury  had  noted  the 
names  of  livo  witnesses  on  the  indictment,  he  had  comj)lied 
with  the  re(]uirement  of  the  statute.  We  are  of  opinion  that 
there  was  no  error  in  overruling  the  motion  to  quash  the  in- 
dictment. 

As  stated  before,  the  indictment  contained  two  counts  —  one 
for  larceny  and  the  other  for  receiving  stolen  goods.  After 
the  evidence  was  all  in  the  defendant  entered  a  motion  to  com- 
pel the  prosecution  to  elect  upon  which  one  of  the  counts  of 
the  indictment  a  conviction  would  be  asked.  The  court  over- 
ruled the  motion,  and  this  decision  is  i-elied  upon  as  error.  In 
IJennett  v.  TJie  People.,  DO  111.,  (!02,  where  a  motion  was  made 
to  require  an  election  before  the  trial  began,  it  was  held  that 
a  count  for  larceny  and  receiving  stolen  goods  might,  properly 
be  joined  in  one  indictment,  and  a  trial  might  be  had  on  all 
the  counts;  that  where  the  charges  all  relate  to  one  transac- 
tion, the  prosecution  would  not  bo  required  to  elect  on  which 
count  a  conviction  would  be  asked.  In  Goodhue  v.  The  People, 
D4  111.,  40,  where  an  indictment  contained  three  counts,  and  a 
motion  was  made  by  the  defense  to  require  an  election,  it  was 
held  that  where  two  or  more  offenses  form  part  of  one  trans- 
action, and  are  such  in  nature  that  a  defendant  may  be  guilty 
of  both,  the  jjrosecution  will  not,  as  a  general  rule,  be  put  to 
an  election,  but  may  proceed  under  one  indictment  for  the 
several  offenses,  though  they  be  felonies.     The  right  of  de- 


4     \    i'i^r 


252 


AMERICAN  CRIMINAL  REPORTS. 


;1,  ,.Ui 


;;;1,  ,.<|l 


If'!: 


manding  an  election,  and  the  limitation  of  the  prosocutioii  to 
one  offense,  is  confined  to  charges  which  are  actually  distinct 
from  each  otlier,  and  do  not  form  parts  of  one  and  the  same 
transaction.  The  doctrine  of  the  cases  cited  is  fully  supported 
in  Bish.  on  Crim.  Proc,  §  457,  where  the  author  says,  "  when 
the  counts  arc  for  different  felonies,  really  or  supposed  to  be 
connected  with  the  one  transaction  — as,  for  example,  larceny 
and  receiving'  stolen  goods,  or  embezzlement  and  larceny,  and 
a  fortiori  where  one  felony  is  set  out  in  various  ways  in  the 
different  counts  to  meet  the  varying  forms  of  proof  —  no  elec- 
tion of  counts  will,  in  ordinary  circumstances,  be  required,  but 
all  will  be  left  open  for  the  jury  to  pass  upon."  Tobin  v.  Tin; 
People,  104  111.,  500,  cited  by  counsel  for  the  defendant,  does 
not  conflict  in  the  least  with  the  rule  indicated  in  the  cases 
cited.  In  that  case  the  joinder  of  counts  was  held  to  be  proper, 
but  the  judgment  was  reversed  because  the  jury  had  failed  to 
determine  under  which  count  of  the  indictment  defendant  was 
guilty;  —  that  where  there  was  a  count  for  robbery,  larceny 
and  receiving  stolen  propel  ty,  a  general  vei'dict  of  guilty  could 
not  be  sustained.  There  was:  no  laotion  to  require  an  election 
in  that  case,  as  here,  and  no  ruling  on  the  [joint  involved  in 
this  case.  Upon  an  examination  of  the  evidence  which  was 
before  the  court  when  the  motion  was  denied,  it  is  apparent 
that  the  offense  charged  in  the  two  counts  of  the  indictment 
grew  out  of  one  transaction;  —  that  the  two  offenses  charged 
formed  a  part  of  one  transaction.  Under  such  circumstances 
it  is  clear  that  the  motion  requiring  the  prosecution  to  elect 
was  properly  overruled. 

The  court  gave  for  the  defendant  eight  instructions  as  asked, 
and  two  as  modified  —  in  all  ten  instructions  —  and  refused 
four.  The  refusal  to  give  the  four  is  assigned  for  error.  The 
first  refused  instruction,  in  substance,  informed  the  jury  that 
the  defendant  should  not  be  convicted  upon  the  uncorrobo- 
rated evidence  of  alleged  confession  made  by  him  to  a  witness, 
and  unless  there  is  other  evidence  showing  that  defendant,  at 
the  time  the  goods  were  received,  knew  they  were  stolen  they 
should  acquit,  etc.  Where  a  crime  has  been  committed,  the 
admissions  of  a  party  charged  with  the  crime,  deliberately 
made,  are  always  admissible,  for  the  purpose  of  showing  tiie 
guilt  of  the  accused,  and  the  jury,  w*lio  are  the  judges  of  the 


ANDREWS  V.  PEOPLE. 


253 


lo 
It 
ic 

ll 


weight  to  be  g'ven  to  all  evidence,  may  convict  on  such  evi- 
dence if  they  believe  it  suiiicient.  "We  regard  this  rule  well 
settled,  both  by  the  authorities  and  the  well-established  prac- 
tice in  criminal  cases.  In  a  case  of  this  character  it  was  nec- 
essary to  prove  that  the  goods  had  been  stolen  by  evidence 
independent  of  the  confessions  of  the  defendant;  when  that 
fact,  which  may  be  regarded  as  the  corpus  delicti,  was  estab- 
lished, then  the  defendant  may  be  convicted  upon  evidence  of 
his  own  confessions.  Williams  v.  T/ie  People,  101  111.,  382. 
As  to  the  second  refused  insti-nction,  the  substance  of  all  that 
is  contained  in  it  was  given  to  the  jury  in  defendant's  instruc- 
tion No.  8,  and  a  repetition  in  a  different  form  of  expression 
was  not  required.  As  to  the  third  refused  instruction,  all  that 
is  embraced  in  it  proper  for  the  consideration  of  the  jury  was 
given  in  instruction  Xo.  4,  and  modified  instruction  No.  6,  and 
it  was  not  error  to  refuse  the  instruction  as  drawn.  Indeed, 
tiie  jury  were  fully,  and  so  far  as  disclosed  by  the  record  fairly, 
instructed  in  regard  to  every  legal  princi])le  involved  in  the 
cise;  and  even  if  it  be  true  that  some  of  defendant's  refused 
instructions  contained  correct  propositions  of  law,  his  case  was 
not  injured  by  their  refusal. 

So  far  as  appears  by  the  record,  the  defendant  has  had  a 
fair  and  impartial  trial,  the  evidence  was  sufHcient  to  warrant 
a  verdict  of  guilty;  and  we  perceive  no  ground  upon  which 
the  judgment  ouglit  to  be  reversed.  It  will  therefore  be  af- 
firmed. 


NoTR. —  Separate  offenses  in  one  count. —  In  x\labama,  on  an  indictment 
cliargiri!;?  l)ur};lary  and  grand  larceny  in  one  count,  there  may  be  a  convic- 
tion of  eillier  oiTeiise,  or  a  general  con%iction  with  only  one  punishment. 
Rohinmn  v.  State,  84  Ala.,  434. 

Lavcoiy — Variance  —  Husband  and  ivife. —  Where  an  indictment  for 
larceny  lays  the  ownership  of  tiie  articles  stolen  in  the  husband,  and  the 
proof  shows  that  they  belonged  to  the  wife,  the  judgment  will  not  be  re- 
versed on  the  ground  of  variance,  where  the  record  does  not  show  whether 
the  offense  was  connnittcd  before  or  after  the  act  of  February  28,  1887 
(Code  Ala.,  1886,  §g  2841-2301),  defining  the  rights  and  liabilities  of  hus- 
band and  wife.     Ibid. 

Distinct  offenses  charged  —  Demurrer. —  It  is  no  ground  of  demurrer  that 
distinct  offenses  are  charged  in  different  counts  of  an  indictment,  and  a  mo- 
tion to  quash  for  that  reason  should  be  overruled.  State  v.  Lockicood,  58 
Vt.,  378. 


rHE  Uw  oOCIETY 


254 


AMERICAN  CRIMINAL  REPORTS. 


Tran/tpnsition  of  letters  in  a  word.—  The  transposition  of  the  letters  "  e  " 
and  "  a  "  in  the  word  "  steal,"  so  as  to  make  it  read  "  stael,"  does  not  ren- 
der a  count  in  an  indictment  defective.    Ibid. 


UiX 


Titus  v.  State. 

(49  N.  J.  L.,  86.) 

Indictment:  Statutory  crime  —  Murder  committed  in  perpetrating  a  fel- 
ony —  Vei'dict. 

1.  Indictment  —  Statutory  crimes.—  When  a  statute,  in  defining  a 
crime,  refers  by  name  to  another  well-known  crime,  and  makes  sucli 
named  crime  a  constituent  of  tlie  defined  crime,  in  an  indictment  for 
the  latter  it  is  not  sufficient  to  use  the  mere  statutory  language,  but 
the  particulars  constituting  the  named  crime  must  be  shown. 

3.  MuuDEU  WHILE  COMMITTING  RAPE  —  INDICTMENT. —  In  an  indictment 
for  murder,  when  tlie  fact  that  the  killing  was  in  the  commission  of  a 
rape  is  relied  on  to  make  such  killing  murder  in  the  first  degree,  a 
count  in  the  general  form  authorized  by  tlie  forty-fifth  section  of  the 
New  Jersey  criminal  procedure  act  is  suflicient. 

8.  Verdict  —  Irregularities  by  jury. —  A  verdict  in  a  capital  case  will 
not  be  set  aside  unless  the  irregularities  committed  by  the  jury  be  of 
a  nature  to  raise  a  suspicion  that  they  may  have  prejudiced  the  pris- 
oner. 

On  rule  to  show  cause  why  a  new  trial  sliould  not  be  granted. 
Indictment  for  murder. 

J.  G.  Slilpman  cfc  So7i,  for  defendant. 

Sylvester  C.  Sirdth  and  Henry  S.  Harris,  for  the  state. 

Bp:asli;y,  C.  J.  This  case  is  before  us  on  a  rule  to  show 
cause  why  the  verdict  should  not  be  set  aside  and  a  new  trial 
granted.  The  inquiry  thus  authorized,  ho'vever,  does  not  ex- 
tend so  far  as  to  embrace  the  question  whether  the  evidence 
was  suilicient  to  sustain  a  conviction,  for  the  case  could  not 
properly  be  opened  to  that  extent,  as  the  proofs  of  the  defend- 
ant's guilt  were  of  the  most  convincing  cliaracter.  The  rule 
as  granted,  and  which  has  been  referred  to  this  court  for  its 
advisory  opinion,  confines  the  investigation  to  three  subjects, 
which  will  be  disposed  of  seriatim.. 


TITUS  V.  STATE. 


255 


/ivSli 


Tlie  first  of  the  questions  thus  propounded  is  whether  the 
second  count  of  the  indictment  in  this  case  is  good  or  bad. 

Tlie  count  thus  challenged  is  in  the  words  following,  viz.: 
"  And  the  grand  inquest  aforesaid,  upon  their  oaths  aforesaid, 
do  further  present  that  the  said  James  J.  Titus,  on  the  said  8th 
day  of  April,  in  the  year  aforesaid,  at  the  said  town  of  Ilack- 
ctt*to\'  aforesaid,  in  said  county,  and  within  the  jurisdiction 
aforesaid,  in  and  upon  one  Matilda  Smith,  in  the  peace  of  God 
and  this  state  then  and  there  being,  did  commit  rape,  and  in 
attempting  to  commit  rape,  and  in  committing  rape,  in  and 
upou  her,  the  said  Matilda  Smith,  did  kill  the  said  l\[atilda 
Smith,  contrary  to  the  form  of  the  statute  in  such  case  made 
and  i)ro\'ided,  against  the  peace  of  this  state,  the  government 
and  dignity  of  the  same." 

It  is  obvious  that  this  count  has  been  fnshioned  upon  the 
theory  that,  if  the  state  relies  upon  the  circumstances  that  the 
alleged  killing  took  place  in  the  commission  of  a  rape,  the  in- 
dictment must  specifically  cxiiibit  such  circumstance.  If  this 
theory  be  correct,  it  follows  that  no  judgment  can  be  founded 
upon  the  jjresent  verdict;  for  the  count  is,  in  our  opinion,  rad- 
ically dolective.  The  Viiistake  of  the  pleader  in  this  instance 
is  the  common  one  of  substituting  an  inference  of  his  own  from 
a  set  of  facts  in  the  place  of  showing  the  existence  of  such 
facts.  He  alleges  that  the  defendant  "did  commit  rape,"  but 
does  not  lay  a  single  fact  from  which  the  court  can  see  that 
such  conclusion  is  well  founded.  No  reason  is  perceived  why, 
if  it  oe  necessary  to  show  a  I'ape  as  one  of  the  constituents  of 
the  oil'enseof  murder  in  the  first  degi-ee,  such  crime  should  not 
be  pleaded  with  the  same  foiniality  as  is  requisite  when  it 
forms  the  sole  basis  of  a  count  in  an  indictment. 

The  only  attempted  justification  ol'  this  departure  from  the 
usual  methods  of  criminal  procedure  is  that  the  pleader,  in 
describing  the  crime,  has  followed  the  language  of  the  statute; 
but,  even  if  it  were  to  bo  admitted  that  the  act  referred  to 
contains  a  description  of  the  offense  charged  upon  this  defend- 
ant, nevertheless  the  count  would  necessarily  be  declared  to 
be  defective  and  insufficient;  for  it  nianilestlv  beloui's  to  that 
class  of  cases  that  stand  aside  the  general  rule  that  in  the  in- 
dictment the  cri:ne  may  be  described  in  tiio  terms  of  the  stat- 
ute creating  it;  for  in  li:e  :.'.ction  now  in  question  murder  in 


■■.;!■'.-.«■.•!•■.■!.. -."T 


,-1  .i■S'- 


111 


256 


AMERICAN  CRIMINAL  REPORTS. 


the  first  degree  is  defined,  in  part,  by  a  reference  to  the  crime 
of  rape,  witliout  setting  forth  the  constituents  of  such  crime, 
and  consequently,  upon  weliknown  principles,  such  definition, 
if  imported  uitliout  explanatory  amplification  into  the  indict- 
ment, will  not  sullice.  Mr.  Bishop,  in  his  treatise  on  Criminal 
Procedure,  states  the  doctrine  in  these  words,  viz.:  "And, 
generally,  where  a  statute  merely  designates  an  offense  by  the 
use  of  some  word,  technical  or  otherwise,  yet  does  not  describe 
the  constituents  of  tlieolfense,  the  indictment  must  state  it  ac- 
cording to  its  legal  and  sometimes  its  actual  particulars."  1 
Bish.  Crim.  Pi-oc.  §  373. 

The  count  in  qaostion  is  fundamentally  defective,  and  must 
be  regarded  as  a  nullity  for  all  the  i)urposes  of  this  prosecu- 
tion. 

The  second  question  is  thus  presented  in  the  state  of  the 
case,  viz. :  "Conceding  that  the  second  count  is  bad,  whether 
the  evidence  of  a  rape,  or  attempt  to  commit  rape,  can  be  used 
under  the  two  otlier  counts  in  oi'der  to  constitute  murder  in 
the  first  degree? "'  The  first  of  the  two  counts  here  I'cferred 
to  is  drawn  in  conformity  U)  the  requirement  of  the  forty -fifth 
section  of  the  criminal  procedure  act,  and  charges,  in  general 
form,  that  the  dei'eudaiit,  "  in  and  upon  one  ]\latilda  Smith,  in 
the  peace,-'  etc.,  "did  make  an  assault,  and  her.  the  said 
Matilda  Smith,  then  and  there  feloniously,  wilfully,  aiid  of  his 
malice  aforethought,  did  kill  and  murder,  contrary,"  etc.  T!ie 
second  of  the  counts  mentioned  is  framed  in  comm(jn-hi\/ 
form,  charging  tiiat  the  def'emlant  murdered  his  victim,  strang- 
ling her  witli  his  hands. 

At  the  tiial  the  jury  was  instructed  that  if  it  appeared  that 
the  killing  was  pci'petrated  by  the  deTendant  in  committing 
or  in  attem|)tiiig  to  commit  a  rape  upon  the  woman,  he  should 
be  found  guilty  of  murder  in  the  first  degree,  without  refer- 
ence to  theqiKstion  whether  such  killing  was  wilful  or  uninten- 
tional. The  jidsition  of  the  counsel  of  the  defendant  upon  the 
point  is,  that  as  there  is  no  special  count  charging  that  the 
death  of  the  woman  occurred  in  the  attempt  to  commit,  or  in 
the  commission  of,  a  rape  upon  her,  the  law  will  not  permit 
such  fact  to  be  proved  for  the  purpose  of  aggravating  the  kill- 
ing, if  it  Avas  unintentional,  into  the  crime  of  murder  in  the 
first  degree.    This  contention  is  based  on  the  sixty-eighth  sec- 


TITUS  r.  STATE. 


257 


t"on  of  the  crimes  act,  w-hich  declares  that  "all  murder  that 
shall  be  perpetrated  by  means  of  poison,  or  by  lying  in  wait, 
or  by  any  other  kind  of  wilful,  deliberate  and  premeditated 
killinj.'",  or  which  shall  be  committing  in  perpetrating  or  at- 
tempting to  perpetrate  any  arson,  rape,"  etc.,  "  shall  bo  deemed 
murder  in  the  first  degree,  and  that  all  other  kinds  of  murder 
shall  be  murder  in  the  second  degree." 

The  argument  urged  in  support  of  the  position  that  a  special 
count  was  indispensable,  whenever  tlie  state  relied  on  any  of 
the  statutory  particulars  connected  with  the  killing  to  inten- 
sify such  killing  into  murder,  was  that,  as  the  act  created  and 
defined  the  offense,  every  constituent  of  the  crime  embraced 
in  such  definition  must  be  stated  in  the  indictment.  But  this 
proposition  cannot  be  sustained;  for  it  has  been  conclusively 
settled  by  the  court  of  errors  in  this  state,  in  the  case  of 
Graves  v.  State,  45  X.  J.  Law,  204,  ;].5S.  that  the  section  relied 
on  did  not  create  any  new  crime,  but  "  merely  made  a  dis- 
tinction, with  a  view  to  a  difference  in  the  punishment,  between 
the  most  heinous  and  the  loss  aggravated  grades  of  the  crime 
of  murder."  This  decided  case  seems  to  us  directly  in  point; 
for,  in  that  instance,  the  indictment  being  in  tiio  abbreviated 
form  given  by  the  statute,  it  was  insisted  that,  as  such  form 
did  not  embody  the  statement  that  the  alleged  killing  was 
"wilful,  deliberate  and  premeditated,"  the  pleading  was  insuf- 
ficient, as  it  did  not  appear  that  murder,  within  the  statutory 
definition  of  tlie  crime,  had  been  committed.  The  objection 
was  overruled  and  the  indictment  was  sustained;  and  it  is 
obvious  that,  if  it  be  not  necessary  to  set  out  in  the  count  that 
the  alleged  killing  was  "  wilful,  delil)erate  and  premeditated," 
which  is  one  of  the  categories  of  murder  mentioned  in  the  sec- 
tion, it  cannot  bo  necessar\'  to  show  that  the  killing  was  in 
the  commission  of  a  rape,  which  is  another  of  the  categories 
of  the  same  section.  We  think  the  adjudged  case  plainly  rules 
the  present  one  with  respect  to  this  sul)joct. 

The  third  and  last  objection  raised  by  the  defense  relates  to 
the  alleged  misconduct  of  some  of  the  jurors  after  they  had 
been  put  in  charge  of  an  oflicer,  and  had  retired  to  their  room 
to  consider  of  their  verdict.  Affidavits  have  been  taken  in  this 
respect,  and  from  them  it  appears  that  certain  of  the  jurors 
sent  the  constable  in  attendance  to  a  jeweler's,  and  procured  a 
Vol.  VII  — 17 


Ig. 


258 


AMERICAN  CRIMINAL  REPORTS. 


magnifying  glass,  and  with  it  compared  certain  wood  fibers 
that  were  adliering  to  the  clothes  of  the  murdered  girl  witli 
those  of  a  ^\  ooden  platform  that  had  been  exhibited  at  the 
trial,  and  upon  which  the  state  contended  the  murdered  woman 
had  been  tlirown  down  when  she  was  violated.  These  clotlios 
and  this  ])i;itform  had  been  sent  to  the  jur}'^  room  by  the  court 
when  the  jury  retired.  There  can  be  no  question  that  this 
conduct  of  these  jurors  was  irregular;  but,  after  admitting 
this,  tlio  question  remains  whether  the  verdict  should  be  set 
aside  on  this  account.  The  rule  is  well  settled  in  this  state 
that  any  misconduct  of  the  jury,  to  have  the  elTect  of  invali- 
dating tlicir  j)roceedings,  must  be  of  such  a  character  as  to  raise 
a  belief  or  at  least  a  suspicion  that  the  misbehavior  complained 
of  has  in  some  measure  prejudiced  the  case  of  the  defendant. 
This  principle  of  practice  was  much  considered,  and  its  limita- 
tions plainly  defined,  in  the  case  of  State  v.  CkcucI,  31  X.  J. 
Lavr,  249,  which  was  also  an  indictment  for  a  capital  offense; 
and,  although  the  lapses  from  the  line  of  duty  of  some  of  the 
jurors  was  of  a  \Qry  marked  character  indeed,  the  court  re- 
fused to  annul  the  verdict  because  there  was  no  reason  to  think 
that  the  verdict  had  in  the  least  degree  bci.-n  alfected  by  such 
irregularities.  After  a  careful  examination  of  the  subject,  the 
general  doctrine  then  announced  was  this:  that  a  verdict  will 
not  be  vacated,  even  in  a  capital  case,  on  account  of  the  mis- 
conduct or  irregularity  of  a  jury,  "  unless  it  be  such  as  might 
affect  their  impartiality  or  disqualify  them  from  the  proper 
exercise  of  their  functions." 

This  being  the  established  rule,  the  only  question  Avhich 
supervenes  is  whether  in  the  testimony  taken  anything  has 
been  shown  that  is  calculated  in  any  nieasure  to  excite  a  sus- 
picion that  the  use  of  the  magnifying  glass,  after  its  surrepti- 
tious introduction  into  the  jury  room,  has  alfocted  the  verdict 
to  the  prejudice  of  the  prisoner.  After  considering  this  mat- 
ter with  duo  care  we  are  clearly  of  opinion  that  there  is  not 
the  slightest  ground  for  such  an  inference;  for  the  case,  of 
necessity,  stood  before  the  jur}'  after  their  instrumental  scru- 
tiny precisely  as  it  did  before  such  experiment.  Certain  (tf 
the  jurors  were  examined  on  the  rule  to  take  affidavits,  and 
there  is  no  room  for  even  a  pretense  that  the  jurors,  by  means 
of  the  instrument  in  question,  either  made,  or  thought  that 


TITUS  V.  STATE. 


259 


tlioy  made,  any  discovery  with  rci^pect  to  the  case.  All  that 
llicy  did,  or  could  do,  by  the  employment  of  the  lens  was  to  find 
liitit  tlio  libers  in  the  dress  corresponded  in  all  respects  with 
iliose  of  the  platform,  and  that  perfect  correspondence  had 
heen  proved  by  an  able  and  accomplished  expert,  who  was  a 
witness  at  the  trial,  and  had  made  a  microscopic  examination 
of  them.  The  entire  identity  of  appearance  of  tliose  woody 
lllaments  was  an  undisputed  fact  in  the  case,  and  the  jury, 
therefore,  knew  such  fact  as  well  before  making  their  test  as 
they  did  afterwards.  The  truth  is  that  it  is  plain  that  the  use 
of  this  glass  was  a  measure  tending  rather  to  favor  than  to 
injure  the  prisoner;  for  the  proofs  of  the  state  on  this  point 
needed  no  ocular  verification,  while,  on  the  other  hand,  if  the 
jury  had  thought  that  they  discovered  a  dissimilitude  between 
the  two  classes  of  libers,  the  case  made  against  the  defendant 
would  have  been  to  some  extent  impaired.  If  there  had  been 
conllicting  testimony  touching  the  matter  thus  looked  into  by 
the  jury,  the  present  motion  would  have  assumed  a  very  dif- 
ferent aspect;  but,  as  these  facts  stand,  we  are  entirely  satis- 
lied  that  the  irregularities  in  question  did  not  in  the  faintest 
degree  prejudice  the  defendant,  nor  did  they  even  tenil  to  do  so. 

These  remarks  should  not  be  closed  without  adverting  to  the 
fact  that  some  of  the  jurors  were  called  as  witnesses,  under  the 
rule  in  this  case,  to  prove  their  own  ollicial  misconduct  or  that 
of  their  fellows.  Such  course  was  conspicuously  illegal.  The 
court  could  not  have  based  its  actions  on  such  testimony,  for 
it  has  been  the  long-established  rule  that  jurors  cannot  be 
called  to  the  btand  for  such  a  purpose. 

Let  the  oyer  and  terminer  be  informed  that,  in  the  opinion 
of  this  court,  the  rule  to  show  cause  should  be  discharged. 


l!  ,1" 


I 
n 


Ml 

m 

m 

m 


Note. —  Lavgvn<fe  of  the  Hlatitte. —  Tl»i>  general  rule  is  well  settled  that  an 
indictment  for  a  Miitutory  ofTetvms  ""^l  especiully  vvlien  theolfense  is  a  nii»- 
demeanor,  cliaiging  the  farts  constituting  the  crime  in  the  words  of  the 
stntute,  and  containing  averments  as  to  time,  place  and  person,  and  other 
circumstances  to  identify  the  particular  ttansaction,  is  good  as  a  pleading, 
ami  justifies  |>utting  the  defendant  on  trial.  Whart.  Crim.  Law,  §  364; 
People  V.  Taylor,  3  Denio,  91;  People  v.  Wvst,  100  N.  Y.,  693.  See,  also, 
State  V.  Howe,  100  N.  C,  449, 

An  indictment  charging  that  the  defendant  "  ilix^  feloniously  steal,  take, 
and  haul  away  "  certain  personal  property  is  not  bad,  on  motion  to  quash, 
for  containing  the  word  "  haul,"  instead  of  the  statutory  terms  "  carry,  lead 
and  drive."    Spittroff  v.  State,  108  Ind.,  171. 


2G0 


AMERICAN  CRIMINAL  REPORTS. 


Under  Laws  of  Oregon,  Special  Session,  1885,  section  4,  page  89,  providing 
that  '*  it  sliall  bo  unlawful  for  any  person  to  frequent  an  oijiuni  den,"  an  in- 
dictment cliarging  tliat  the  defendant,  on  or  about  tlie  8tli  dayof  A[iril, 
1880,  .  .  .  did  unlawfully  anil  feloniously  enter  and  frequent  a  ccv- 
tain  opium  den,  situated,"  etc.,  "  for  the  purpose  of  tlion  and  there  enioinn,;; 
opium,"'  is  sufhcient.    State  lu  Ah  Sam,  14  Or,.  847. 

In  Franklin  v.  State,  108  Ind.,  47,  the  court  says:  "It  is  well  settled  tliat 
an  indictment  or  infornuition  will  be  ui)held  if  it  uses  words  of  equiv.ilciiL 
meaning  to  those  emi)loyed  by  the  statute  in  defining  the  offense.  Iloiniinj 
V,  State,  lOli  Ind.,  880;  A'/j/r/.s  v.  State,  101  Ind.,  201 ;  State  v.  Avdrrnm,  lo:? 
Ind.,  170.  Tlie  word  '  feloniously '  is  used,  instead  of  ti.e  word  '  unlawful,' 
and  it  is  a  word  of  much  uuire  force  and  more  comprehensive  meaning  than 
the  word  'unlawful.'  Shiini  v.  State,  08  Ind.,  42:5;  Hays  v.  State,  7T  Ind., 
450;  Wliart.  PI.  &  Pr.,  ^  i-'OO.  It  is  obvious  that  an  act  cannot  be  feloniously 
done,  and  yet  not  be  unlawful.  Not  only  does  the  information  contain  the 
word  '  feloniously,'  but  it  also  alleges  that  tho  appellant  'did  wilfully,  pur- 
posely, and  with  premeditated  malice,  in  a  rude,  insolent  and  angrj'  man- 
ner, strike  one  Samuel  Watkins  with  a  deadly  weapon,  with  intent  then 
and  thereby  him,  the  said  Sanniel  Watkins,  purposely,  wilfully,  and  with 
premeditated  malice,  to  kill  and  murder;'  and,  as  said  in  Slate  v.  3Iiirphi/, 
21  In:l.,  441 :  'One  man  cannot  strike  another  with  tlie  malice  ami  premed- 
itated intent  to  murder  him  —  murder  Ix'ing  a  tcchidcal  term  —  without 
doing  so  unlawfully." "    Ilodyen  r.  State,  '22  Tex.  App.,  415. 

The  ch.'irging  jjart  of  an  information,  otherwise  sullicient,  was  that  "on 
the  2Cth  day  of  November,  A.  I).  18K5,  ju  said  county  of  VVabatinsee,  in  the 
said  state  of  Kansas,  Thomas  MtGaflin  did  then  and  there  unlawfully,  felo- 
niously, wilfidly,  deliberately  and  premeditatedlj' kill  and  murder  one  Har- 
rison Shernum,  then  and  there  being,  liy  shooting  him,  the  said  Harrison 
Sherman,  with  a  certain  pistol  commonly  called  a  '  revolver,'  then  and  there 
loaded  with  jiowder  and  leaden  bullets,  which  saiil  i  islol,  so  as  aforesaid 
loaded  with  powder  and  h^adiii  bullets,  tho  said  Thomas  MtGaflin  then  and 
there  in  his  hands  had  and  held,  contrary  to  tho  form,"  etc.  Ilelil,  that  the 
terms  employed  in  charging  the  oirense  are  tho  equivalent  of  a  statement 
that  the  killing  was  done  intentionally  and  with  malice  aforethought,  and 
expresses  every  element  of  the  crime  of  murder  in  the  first  degree.  State 
V.  McGaffiti,  86  Kan.,  815;  Graves  v.  State,  4  Am.  Cr.  R.,  380. 

Hut  see  note  to  the  last  case,  and  psuticularly  the  case  of  State  v.  Boyle, 
28  Iowa,  522.  In  this  latter  case  the  word  "  deliberate"  was  omitted,  and 
the  court  held  tho  indictment  bad  for  nnirder  of  tho  fast  degree  as  defined 
in  the  code. 

Accused  must  he  apprised,  with  reasnii(d)le  certainty,  of  the  accusation 
against  him.  —  When  tho  ofTense  is  purely  statutory  it  is,  as  a  general  rule, 
sulHcient  in  the  indictment  to  charge  the  defendant  with  acts  coming 
within  the  statutory  description  in  the  substantial  words  of  tho  statute, 
without  any  further  expansion  of  tho  matter.  .  .  .  But  to  this  rule 
there  is  the  qualification,  fundament.'d  in  the  law  of  criminal  procedure, 
that  the  accused  must  be  apprised  in  the  indictment,  with  reasonable  cer- 
tainty, of  tho  accusation  against  him,  to  the  end  that  he  may  prepare  his 
defense  and  plead  the  judgment  as  a  bar  to  any  subsequent  prosecution  for 
the  same  otfense.     United  Stvtes  v.  Simmons,  06  U.  9.,  360,  303.    It  is  not 


.^■,:J\v 


TITUS  V.  STATE. 


261 


sufficient  to  set  forth  the  offense  in  the  words  of  the  statute,  unless  tliose 
words  of  theniHclvcs  fully,  directly  and  expressly,  without  any  uncertainty 
or  ambiguity,  set  forth  all  the  elements  necessary  to  constitute  th  ^jffense 
intended  to  be  punished ;  and  the  fact  that  the  statute  in  question,  read  in 
the  light  of  the  common  law.  and  of  other  statutes  on  the  like  matter,  en- 
ables the  court  to  infer  the  intent  of  tlie  lejj;isUiture,  does  not  dispense  with 
the  necessity  of  alleging  in  the  indi(!tnient  all  the  facts  necessary'  to  bring 
the  case  within  that  intent.  United  States  v.  Cuvll,  105  U.  S.,  Oil ;  United 
Stdtr.H  V.  Cook,  17  Wall.,  1C8. 

Ti clinical  words,  exceptions,  etc. —  In  United  States  v.  Britton,  107  U.  S., 
(ir),")-Oi)i),  it  is  held  that  the  words  "  wilfully  misapplied,"'  found  in  section 
r).'!)!)  of  the  Revised  Statutes  of  the  United  States,  have  no  settled  technical 
meaning  like  the  word  "embezzle,"  as  used  in  the  statutes,  or  tiie  words 
"steal,  take  and  carry  away,"  as  used  at  common  law.  "  They  do  not, 
therefore,  of  themselves,  fully  and  clearly  set  forth  every  element  of  the 
olFenso  charged.  It  would  not  be  suflicient  simply  to  aver  that  the  defend- 
ant'wilfully  misapplied' the  funds  of  the  association,  .  .  .  The  very 
section  (5201)  and  sentence  of  the  statute  which  declares  that  no  banking 
association  shall  be  a  purchaser  of  its  own  shares  contains  the  excei)tion, '  un- 
L'ss  such  puichasc  shall  be  necessary  to  prevent  loss  upon  a  debt  i)reviously 
contracteil  in  good  faith.'  This  exception  should  have  been  negatived  in 
these  counts.  Tiie  rule  of  pleading,  as  laid  down  by  Mr.  Chitty,  la  that 
'when  a  statute  contains  provisos  and  exce|itions  in  distinct  clauses  it  is 
not  necessary  to  state  in  the  indictuient  that  the  defendant  does  not  come 
within  the  exceptions,  or  to  negative  the  jji-ovisos  it  contains.  On  the  con- 
trarj',  if  the  exceptions  themselves  are  stated  in  the  enacting  clause,  it  will 
bo  necessary  to  negative  them  in  onler  that  the  description  of  the  crime 
may  correspond  in  all  respects  with  the  statute.'  1  Chitty,  Crim.  Law, 
28;]?),  28-1. 

"  Thus,  where  a  statute  declared  that  if  one  on  the  Sabbath  day  '  shall  ex- 
i'r(;ise  any  secular  labor,  business  or  employment,  except  only  as  works  of 
necessity  and  charity,  he  shall  be  i)unishei1,'  etc.,  a  negative  of  the  excep- 
tion was  held  indispensable.  State  v.  liarkei;  18  Vt.,  195.  See,  also,  Com- 
monu-ealtli  i\  Maxwell,  12  Pick.  (Mass.),  loO;  1  East,  P.  C,  107;  Spiercs  v. 
PurliCi;  1  Term  li.,  141;  Gill  v.  Serivens,  7  id.,  27;  1  Bishop's  Crim.  Pro., 
sec.  C.IJG." 

See,  generally,  State  v.  Graham,  4  Am.  Cr.  R.,  276;  State  v.  Scarlett,  id., 
278,  and  note;  VlarJ'oss  v.  State,  1  id.,  4C0. 

Statutory  form —  When  insufficient. —  Undoubtedly  the  legislature  may 
abbreviate  and  simplify  the  forms  of  indictments,  but  it  cannot  make  valid 
and  suflicient  an  indictment  in  which  the  accusation  is  not  sot  forth  with 
sulHcient  fullness  to  enable  the  accused  to  know  with  reasonable  certainty 
what  the  matter  of  fact  is  which  he  has  got  to  meet,  and  enable  the  court 
to  see,  without  going  out  of  the  record,  that  a  crime  has  beon  committed. 
Tlio  legislature,  in  its  laudable  desire  to  prune  away  the  great  prolixity  of 
the  forms  required  by  the  common  law,  must  not  cut  so  deep  as  not  to  leave 
enough  to  meet  the  requirements  of  the  constitution.  State  V.  Mace,  76 
Me.,  64;  State  v.  Learned,  47  id.,  430. 


n 


Hi> 


262 


AMERICAN  CRIMINAL  REPORTS. 


'  \iVii- 


'iMii-;''' 


i' 


Gundy  v.  State. 

(73  Wis.,  1.) 

Indictment:  Negative  allegations. 

BuROT.ARY  —  Indictment  —  Neoative  allegations. —  An  information  for 
burglary  under  section  4409,  Kevisod  Statutes  of  Wisconsin  of  187S, 
e.stnl)iiHliing  tlie  penalty  for  breaking  and  entering  in  the  night-time, 
witlj  intent  to  commit  a  felony,  need  not  allege  that  tlio  building  en- 
tered was  "  not  adjoining  or  occupied  with  any  dwelling-house."  i 

Error  to  Circuit  Court,  Richland  County. 

The  information,  in  effect,  charges  that  on  April  5,  1SS7, 
and  in  the  night-time  of  that  day,  Daniel  Gundy,  the  plaintiff 
in  error,  at  Richland  county,  did  with  force  and  arms  a  cer- 
tain building,  then  and  there  situate,  tiien  and  there  being  the 
property  of  and  occupied  by  Jabish  "NVeir,  then  and  there 
feloniously  and  burglariously  break  and  enter,  with  intent  the 
goods  and  chattels  of  said  AVeir  in  the  said  building  then  and 
there  being,  then  and  there  feloniously  and  burglariously  to 
steal,  take  and  carry  away,  and  then  and  there,  with  force  and 
arms,  the  several  articles  and  pieces  of  propert_y  therein  de- 
scribed, each  of  the  value  therein  mentioned,  of  the  goods  and 
chattels  of  the  said  Weir  in  the  said  building  then  and  there 
being  found,  then  and  there  feloniously  and  burglariously  did 
steal,  take  and  carry  away,  against  the  peace  and  dignity  of 
the  state  of  Wisconsin.  Thereupon  the  said  Gundy  was  ar- 
raigned in  court;  and  the  said  information  being  filed  and 
read  to  him  by  the  district  attorney,  he  pleaded  guilty  thereto, 
and  the  court  thereupon  sentenced  the  said  Gundy  to  be  pun- 
ished by  imprisonment  in  the  state's  ])rison  at  Waupun  for  the 
period  of  two  years, —  one  day  of  that  time  to  be  in  solitary 
confinement,  the  remainder  thereof  to  be  at  hard  labor.  To 
reverse  said  judgment  the  said  Gundy  brings  this  writ  of 
error.'^ 

Michael  3Iurphy,  for  plaintiff  in  error. 

Chas.  E.  Entahrook,  attorney-general,  for  defendant  in  error. 

1  See  note. 

2  Revised  Statutes  of  Wisconsin  of  1878,  section  4409,  establishes  a  penalty 
for  breaking  and  entering  "  in  the  night-time  any  office,  shop  or  ware- 
house, or  any  other  building  not  adjoining  or  occupied  with  any  dwelling- 
house,  .  .  .  with  intent  to  commit  the  crime  of  murder,  rape,  robbery, 
larceny  or  other  felony." 


GUNDY  V.  STATE. 


203 


Cassoday,  J.  It  is  said  that  the  information  is  insufficient 
under  section  4400,  IJevised  Statutes,  by  reason  of  the  failure 
to  allege  that  the  building  mentioned  was  "not  adjoining  or 
occupied  with  any  dwoUing-houso."  The  only  object  there 
would  have  been  for  such  allegation  would  bo  to  confine  the 
charge  to  the  lower  grade  of  burglary  described  in  the  section 
cited,  by  negativing  the  existence  of  a  distinguishing  feature 
of  a  higher  grade  of  the  same  offense  prescribed  in  the  two 
preceding  sections.  This  court  has  recently  passed  directly 
upon  the  question,  and  in  effect  held  that,  in  charging  an  of- 
fense under  the  section  cited,  it  is  not  incumbent  upon  the 
state  to  allege  the  negative  therein  provided,  and  contained  in 
the  words,  "not  adjoining  or  occupied  with  any  dwelling- 
house."  State  V.  Kane,  G3  Wis.,  201-2G8.  The  reasons  for 
such  holding  are  so  fully  given  by  Mr.  Justice  Orton  in  that 
case>  as  to  preclude  further  discussion.  The  same  rule  was 
sanctioned  in  NlehoUx  v.  State,  OS  Wis.,  420;  I^c parte  Vincent, 
2G  Ala.,  145.  The  case  cited  by  the  learned  counsel  for  the  ac- 
cused was  not  for  an  offense  thus  graded  by  statute,  and  hence 
is  inapplicable.  The  allegation  of  a  "certain  building,"  with- 
out other  words  of  designation,  was  sufficient.  Ciar/c  v.  State, 
69  Wis.,  203. 

Bf/  the  Court. —  The  judgment  of  the  circuit  court  is  af- 
firmed. 


Note. —  Selling  liquor  without  Zi'ecnse.— Under  the  code  of  Alabama  of 
1880,  section  40:J7,  {nescribinj;  tlie  form  of  indictment  for  tlie  violation  of 
special  prohibitory  laws,  an  indictment  charging  that  defendant  "  sold 
vinous  or  spirituous  liiiuors  without  a  license"  is  sufficient,  and  need  not 
aver  that  defendant  does  not  come  under  the  exceptions  of  druggists  and 
physicians,  who  may  lawfully  sell  spirituous  liquors  under  the  provisions  of 
acts  of  Alabama  of  1880-81,  but  this  matter  may  be  set  up  in  defense. 
Bogan  v.  State,  84  Ala.,  449. 


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IMAGE  EVALUATION 
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AMERICAN  CRIMINAL  REPORTS. 


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Murphy  v.  State. 

(IOC  Ind.,  96.) 

Indictment  :  Impossible  date. 

An  indictment  which  states  an  impossible  date  is  bad  on  motion  to  quash,  i 

Appeal  from  Owen  Circuit  Court. 

I^dffitr  C.  Steele  and  Willis  Hicham,,  for  appellant. 
F.  T.  Ilord,  attorney-general,  for  appellee. 

NiBLACK,  C.  J.  Oyer  a  motion  to  quash  the  indictment  the 
appellant  was  tried,  and,  over  a  motion  in  arrest  of  judgment, 
was  convicted  of  an  alleged  criminal  offense  upon  an  indict- 
ment, the  body  of  which  reads  as  follows: 

"The  j;*'and  jurors  of  the  county  of  Owen  and  state  of  Indi- 
ana on  their  oath  present  that,  at  the  county  of  Owen  and 
state  of  Indiana,  on  the  16th  day  of  August,  181S4,  one 
Thomas  Murphy  did  then  and  there  unlawfully  sell  to  John 
Vaughn,  at  and  for  the  price  of  ten  cents,  a  less  quantity  than 
a  quart  at  a  time,  to  wit,  one  gill  of  whisky;  he,  the  said 
Thomas  Murphy,  not  then  and  there  having  a  license  to  sell 
intoxicating  liquors  in  a  less  quantity  than  a  quart  at  a  time." 

The  only  question  made  on  bcbalf  of  the  a|)pellant  is  upon 
the  sufficiency  of  the  indictment,  the  contention  being  that 
the  indictment  is  fatally  defective  because  the  time  at  which 
the  offense  is  charged  to  have  been  committed  is  subsequent 
to  the  return  of  the  indictment,  and  is  consequently  an  impos- 
sible time.  It  is  argued  on  behalf  of  the  state  that  the  fair 
inference  from  the  case  of  Slate  v.  Sammons,  95  Ind.,  22,  is  that 
an  impossible  date  in  an  indictment  is  the  equivalent  of  no 
date  at  all;  and  that  as  section  175G,  Revised  Statutes  of  1881, 
provides  that  no  indictment  or  information  shall  be  quashed 
or  set  aside,  or  proceeding  upon  it  arrested,  for  omitting  to 
state  the  time  at  which  the  offense  was  committed,  or  for  stat- 
ing the  time  imperfectly,  unless  time  is  of  the  essence  of  the 
offense,  the  fixing  of  an  impossible  date  is  no  longer  a  cause 
for  quashing  an  indictment.  The  opinion  in  that  case  does  in- 
timate that  the  imperfect  statement  of  time  then  under  con- 

•  See  note. 


MURPHY  V.  STATE. 


265 


''i1 


sideration  might,  perhaps,  have  been  treated  or  regarded  as 
the  equivalent  of  no  statement  of  any  particular  time,  but  it 
really  decides  only  that  an  indictment  ought  not  to  be  quashed 
for  omitting  to  state  tha  time  at  which  the  alleged  offense  was 
committed,  or  on  account  of  an  improper  statement  of  the 
time.  There  is  nothing  in  that  case  either  changing  or  inti- 
mating any  change  in  the  old  rule  that  the  allegation  of  an 
impossible  date  vitiates  an  indictment.  State  v.  JVoland,  29 
Ind.,  212;  Moore,  Crim.  Law,  §  162.  Nor  does  the  section  of 
the  Criminal  Code  of  1881  referred  to  work  any  change  in 
that  rule.  It  is,  on  the  contrarj'^,  inferable  from  the  case  of 
Stale  V.  Sammons,  in  question,  that  an  indictment  is  bad  which 
either  distinctly  states  an  impossible  date,  or  fixes  the  date  of 
the  offense  at  a  ',me  beyond  that  limited  by  the  statute  of 
limitations.  This  inference  results  in  part  from  the  rule,  im- 
pliedly recognized  in  that  case,  that  upon  a  motion  to  quash 
an  indictment  it  is,  for  the  purposes  of  the  motion,  admitted 
by  both  j)arties  that  the  time  at  which  the  offense  is  charged 
to  have  been  committed  is  correctly  stated,  and  partly  from 
the  conclusion  then  reached  that  the  common-law  rule  that  a 
day  certain,  not  beyond  the  statutory  limit,  must  be  stated  in 
an  indictment,  is  still  in  force  in  this  state,  except  in  so  far  as 
it  has  been  changed  or  modified  by  some  statute.  As  has 
ijeen  seen,  section  1756,  Revised  Statutes  of  1881,  the  only  seo- 
tio.i  bearing  directly  on  the  subject,  only  renders  immaterial 
the  omission  to  state  any  time,  and  an  imperfect  statement  of 
time,  and  hence  only  to  that  extent  changes  the  common-law 
rule.  Since  ujmn  the  motion  to  quash  in  this  case  it  was 
mutually  admitted  that  the  alleged  unlawful  sale  of  intoxicat- 
ing liquor  was  made  at  a  date  subsequent  to  the  retnrn  of  the 
indictment,  the  motion  to  quash  the  indictment  ought  to  liave 
been  sustained. 

The  judgment  is  reversed,  and  the  cause  remanded  with  in- 
structions to  the  court  below  to  sustain  the  motion  to  quash 
the  indictment. 

Note,— /)(/?/,  month  and  year  must  be  alleged.— In  State  v.  Beaton,  79 
Me.,  314,  it  is  liolil  timt  ndtlier  a  complaint  nor  an  indictment  for  a  crimi- 
nal offense  ia  hiitticient  unless  it  states  the  day,  as  well  us  the  month  and 
year,  on  which  the  offense  was  committed. 

Perjury—  Term  of  court.—  An  indictment  for  perjury  does  not  set  forth 
with  sufficient  particularity  the  time  when  the  offense  was  committed  by 


266 


AMERICAN  CRIMINAL  REPORTS. 


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the  allegation  "heretofore,  to  wit:  At  the  supreme  judicial  court  begun 
and  holden  at  Miicliias,  within  and  for  the  county  of  Washington,  aforesaiti, 
on  tlie  first  Tuesday  of  January,  in  tlie  year  of  our  Lord  one  thousand  eigiit 
hundred  and  eighty-s:'x."  State  v,  Fenlason,  79  Me.,  117 ;  State  v.  Hanson, 
89  Me.,  349. 

See,  generally,  in  respect  to  dates,  Williama  v.  State,  4  Am.  Or.  R.,  292, 
and  note. 


Parsons  v.  State. 


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(81  Ala.,  577.) 

Insanity  as  a  defense  :  Delusion  —  Question  for  jury  —  Burden  of  proof — 

Reasonable  doubt. 

1.  Insanity  as  a  defense  —  Proper  rule  of  legal  responsibility.— 

The  capacity  to  distinguish  between  riglit  and  wrong,  either  abstractly 
or  as  applied  to  tlie  particular  act,  as  a  legal  test  of  responsibility  for 
crime,  is  repudiated  by  the  modern  and  more  advanced  authorities, 
legal  and  medical,  who  lay  down  the  following  rules,  which  the  court 
now  adopts:  (1)  Where  there  is  no  such  capacity  to  distinguish 
between  right  and  wrong  as  applied  to  the  particular  act,  there  is  no 
legal  responsibility.  (2)  Where  there  is  such  capacity,  a  defendant  is 
nevertheless  not  legally  responsible  if,  by  reason  of  the  duress  of 
mental  disease,  he  has  so  far  lost  the  power  to  choose  between  right 
and  wrong  as  not  to  avoid  doing  the  act  in  question,  so  that  his  free 
agency  was  at  the  time  destroyed ;  and,  at  the  same  time,  the  alleged 
crime  was  so  connected  with  such  mental  disease,  in  the  relation  of 
cause  and  effect,  as  to  have  been  the  product  or  olTsiiring  of  it  solely. 

2.  Delusional  insanity. —  The  same  rule  applies  to  delusional  insanity, 

and  necessarily  conflicts  with  the  old  rule  laid  down  by  the  English 
judges,  in  McNaghten's  Case,  that,  in  cases  of  delusion,  the  defend- 
ant "  must  be  considered  in  the  same  situation,  as  to  responsibility,  as 
if  the  facts  with  respect  to  which  the  delusion  exists  were  real."  (The 
fourth  hnd-note  in  BosicelVa  Case,  63  Ala.,  308,  on  this  point,  pro- 
nounced obiter  dictum.) 

3.  Insanity  as  a  disease,  question  for  jury.— The  existence  or  non- 

existence of  the  disease  of  insanity,  such  as  rnay  fall  within  the  above 
rule,  is  a  question  of  fact  to  be  determined  in  each  particular  case  by 
the  jury,  enlightened,  if  necessary,  by  the  testimony  of  experts. 

4.  Burden  op  proof  —  Reasonable  doubt.— When  insanity  is  set  up  as 

a  defense  in  a  criminal  case  it  must  be  established  to  the  satisfaction 
of  the  jury  by  a  preponderance  of  the  evidence,  and  a  reasonable 
doubt  of  the  defendant's  sanity,  raised  by  all  tlie  evidence,  does  not 
justify  an  acquittal. 


PARSONS  f.  STATE. 


267 


In 

jl, 

jit 


B.  Non-experts  as  witnesses  in  insanity  cases.— The  rule  on  this  sub- 
ject stated  in  Ford's  Case,  71  Ala.,  885,  adliered  to,  that,  while  non- 
experts may  give  their  opinions  on  the  question  of  iho  defendant's 
alleged  insanity,  such  opinions  must  first  lie  prel'aced  by  a  statement 
of  the  facts  upon  which  they  are  based. 

Appeal  from  City  Court  of  Birmingham;  Sharpe,  Judge. 

The  indictment  in  this  case  charged  that  the  defendants, 
Nancy  J.  Parsons  and  Joe  Parsons,  unlawfully  and  with  mal- 
ice aforethought  killed  Bennett  Parsons  by  shooting  him  with 
a  gun. 

On  said  trial  the  evidence  on  behalf  of  the  state  tended  to 
show  that  the  defendants,  Joe  Parsons  and  Nancy  J.  Parsons, 
murdered  Bennett  Parsons  on  January  31,  18S5,  by  shooting 
him  with  a  gun.  The  evidence  on  behalf  of  defendants  tended 
to  siiow  that  defendant  Joe  Parsons  was,  at  the  time  of  said 
killing,  and  had  always  been,  an  idiot;  and  that  defendant 
Nancy  Parsons  was,  at  the  time  of  said  killing,  insane;  that 
the  act  of  Nancy,  assisting  in  the  killing  of  deceased,  was  the 
result  of  an  insane  delusion  that  deceased  possessed  super- 
natural power  to  inflict  her  with  disease,  and  power,  by  means 
of  a  superr  atural  trick,  to  take  her  life ;  that  deceased,  by  means 
of  such  supernatural  power,  had  caused  said  Nancy  to  be  sick 
and  in  bad  health  for  a  long  time,  and  that  her  act,  at  the 
time  of  said  killing,  in  assisting  therein,  was  under  the  insane 
delusion  that  she  was  in  great  danger  of  the  loss  of  her  life 
from  the  deceased,  to  be  effected  by  a  supernatural  trick.  The 
defendant  Nancy  was  the  wife  of  deceased,  and  defendant 
Joe  was  his  daughter.  The  evidence  also  tended  to  show  in- 
sanity for  two  generations  in  the  families  of  said  defendants. 
The  defendant  Joe  offered  to  prove,  by  Mrs.  James  Nail,  that 
"she  had  known  Joe  Parsons  from  her  infancy,  that  she  has 
been  idiotic  all  her  life,  and  she  is  idiotic  now,  and  that  she  has 
seen  her  frequently  during  her  acquaintance  with  her,  and 
has  often  conversed  with  her."  The  state  objected  to  the 
introduction  of  said  evidence,  which  objection  the  court  sus- 
tained, and  defendants  excepted. 

The  court,  ex  mero  motu,  charged  the  jury  that  "  when  in- 
sanity is  relied  on  as  a  defense  to  crime,  and  such  insanity 
consists  of  a  delusion  merely,  and  the  defendant  is  not  shown 
to  be  otherwise  insane,  then  such  delusion  is  no  justification 


1      'L 


I 


268 


AMERICAN  CRIMINAL  REPORTS. 


or  excuse  of  homicide,  unless  the  perpetrator  was  insanely  de- 
luded into  the  belief  of  the  existence  of  a  fact  or  state  of 
facts,  which,  if  true,  would  justify  or  excuse  the  homicide 
under  the  law  applicable  to  sane  persons."  The  defendants 
duly  excepted  to  the  giving  of  this  charge. 

The  court  gave  the  following  among  other  charges,  at  the 
request  of  the  state,  to  which  defendants  duly  exce]»ted: 
"(2)  It  is  only  insanity  of  a  chronic  or  permanent  nature 
which,  on  being  proved,  is  presumed  to  continue;  there  is  no 
presumption  that  fitful  and  exceptional  attacks  of  insanity  are 
continuous.-'  "(5)  If  the  jury  believe,  from  all  the  testimony, 
that  the  defendants  at  the  time  of  the  killing  were  in  such  a 
state  of  mmd  as  to  know  that  the  act  they  were  committing 
was  unlawful  and  morally  wrong,  they  are  responsible  as  a 
sane  person,  if  the  jury  believe  they  committed  the  act  with 
which  they  are  charged." 

The  defendants  asked  the  following  charges,  in  writing, 
which  the  court  refused  to  give,  and  to  which  rulings  of  the 
court  exceptions  were  duly  reserved :  "6.  In  order  to  consti- 
tute a  crime  the  accused  must  have  memory  and  intelligence 
sufficient  to  know  that  the  act  slie  is  about  to  commit  is  wrong, 
to  remember  and  understand  that  if  she  commits  the  act  she 
will  be  punished,  and,  besides  this,  reason  and  will  to  enable 
her  to  comprehend  and  choose  between  the  suppose  advan- 
tage at  the  gratification  to  be  obtained  by  the  criminal  act 
and  the  immunity  from  punishment  which  she  will  secure 
from  abstaining  from  it."  "8.  If  the  jury  believe  from  the 
evidence  that  the  prisoners  or  either  of  them  was  moved  to 
action  by  an  insane  impulse  controlling  their  will  or  their  judg- 
ment, then  they  are,  or  the  one  so  alfected  is,  not  guilt}'  of 
the  crime  charged."  "  12.  If  the  jury  believe  from  the  evi- 
dence that  the  prisoners  committed  the  act  in  a  manner  which 
would  be  criminal  and  unlawful  if  they  were  sane,  the  verdict 
should  be  'not  guilty,'  if  the  killing  was  an  offspring  or  prod- 
uct of  mental  disease  in  the  prisoner." 

The  jury,  on  their  retirement,  found  the  defendants  guilty 
of  murder  in  the  second  degree,  and  this  appeal  is  prosecuted 
from  the  judgment  rendered  on  such  finding. 


Smith  f&  Zotve  and  Wm.  Bet/tea,  for  appellants. 
2\  N.  McClellan,  attorney -general,  contra. 


!0! 


PARSONS  r.  STATE. 


269 


e 


SoMERViLLE,  J.  In  this  case  the  defendants  have  been  con- 
victed of  t'^o  murder  of  Bennett  Parsons  bv  shrotini;  liim 
with  a  gun;  one  of  the  defendants  being  the  wife  and  the 
oth^r  the  daughter  of  the  deceased.  The  defense  set  up  in 
the  trial  was  the  plea  of  insanity,  the  evidence  tending  to 
show  that  the  daughter  was  an  idiot,  and  the  mother  and  wife 
a  lunatic,  subject  to  insane  delusions,  and  that  the  killing  on 
her  part  was  the  offspring  and  product  of  those  delusions. 

The  rulings  of  the  court  raised  some  questions  of  no  less 
difliculty  than  of  interest,  for,  as  observed  by  a  dii'tinguished 
American  judge,  "of  all  medico-legal  questions,  those  con- 
nected with  insanity  are  the  most  difiicult  and  perplexing." 
Per  Dillon,  C.  J.,  in  State  v.  Fdte)\  25  Iowa,  07.  It  has  be- 
come of  late  a  matter  of  comment  among  intelligent  men,  in- 
cluding the  most  advanced  thinkers  in  the  medical  and  legal 
professions,  that  the  deliverances  of  the  law  courts  on  this 
branch  of  our  jurisprudence  have  not  heretofore  been  at  all 
satisfactory,  either  in  the  soundness  of  their  theories  or  in  their 
practical  application.  The  earliest  English  decisions  striving 
to  establish  rules  and  tests  on  the  subject,  including  alike  the 
legal  rules  of  criminal  and  civil  responsibility,  and  the  sup- 
posed tests  of  the  existence  of  the  disease  of  insanity  itself,  are 
now  admitted  to  have  been  deplorably  erroneous,  and,  to  say 
nothing  of  their  vacillating  character,  have  long  since  been 
abandoned.  The  views  of  the  ablest  of  the  old  text-writers 
and  sages  of  the  law  were  equally  confused  and  uncertain  in 
the  treatment  of  these  subjects,  and  they  are  now  entirely  ex- 
ploded. Time  was  in  the  history  of  our  laws  that  the  veriest 
lunatic  was  debarred  from  pleading  his  providential  affliction 
as  a  defense  to  his  contracts.  It  was  said,  in  justification  of 
so  absurd  a  rule,  that  no  one  could  be  permitted  to  stultify 
himself  by  pleading  his  own  'Usability.  So  great  a  jurist  as 
Lord  Coke,  in  his  attempted  classification  of  madmen,  laid 
down  the  legal  rule  of  criminal  responsibility  to  bo  that  one 
should  "'loholhj  have  lor>t  his  memory  and  understanding;"  as 
to  which  ]VIr.  Erskine,  when  defending  Hadfield  for  shooting 
the  king,  in  the  year  1800,  justly  observed :  "  No  such  madman 
ever  existed  in  the  world."  After  this  great  and  historical 
case  the  existence  of  delusion  promised  for  awhile  to  become 
the  sole  test  of  insanity,  and,  acting  under  the  duress  of  such 


M^\ 


270 


AMERICAN  CRIMINAL  REPORTS. 


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dolnsion,  was  recognized  in  effect  as  the  legal  rule  of  responsi- 
bility. Lord  Kenyon,  after  ordering  a  verdict  of  acquittal  in 
that  case,  declared  with  emphasis  that  there  was  *' no  doubt 
on  earth  "  the  law  was  correctly  stated  in  the  argument  of 
counsel.  But,  as  it  was  soon  discovered  that  insanity  often 
existed  without  delusions,  as  well  as  delusions  without  insanity, 
this  view  was  also  abandoned.  Lord  Hale  had  before  declared 
that  the  rule  of  responsibility  was  measured  by  the  mental 
capacity  possessed  by  a  child  fourteen  years  of  age,  and  Mr. 
Justice  Tracy  and  other  judges  had  ventured  to  decide  that,  to 
be  non-punishable  for  alleged  acts  of  crime,  "a  man  must  be 
totally  deprived  of  his  understanding  and  memory,  so  as  not 
to  know  what  ho  was  doing,  no  more  than  an  infant,  a  brute 
or  a  wild  heauL'^  Arnold'a  Case,  16  How.  St.  Tr.,  704.  All 
these  rules  have  necessarily  been  discarded  in  modern  times  in 
the  light  of  tlio  new  scientific  knowledge  acquired  by  a  move 
thorough  study  of  the  disease  of  insanity.  In  Bellingham^s 
Case,  decided  in  1812  by  Lord  Mansfield  at  the  Old  Bailey 
(Coll.  on  Lun.,  630),  the  test  was  held  to  consist  in  a  knowledge 
that  murder,  the  crime  there  committed,  was  "against  the 
laws  of  God  and  nature,"  thus  meaning  an  ability  to  distin- 
guish between  right  and  wrong  in  the  abstract.  This  rule  was 
not  adhered  to,  but  seems  to  have  been  modified  so  as  to  make 
the  test  rather  a  knowledge  of  right  and  wrong  as  applied  to 
the  particular  act.  Lawson  on  Insan.,  231,  %7  et  seq.  The 
great  leading  case  on  this  subject  in  England  is  McNaghterCa 
Case,  decided  in  1843  before  the  English  house  of  lords.  10 
CI.  &  F.,  200;  S.  a,  2  Lawson,  Crim.  Def.,  150.  It  was  de- 
cided by  the  judges  in  that  case  that,  in  order  to  entitle  the 
accused  to  acquittal,  it  must  be  clearly  proved  that,  at  the  time 
of  committing  the  offense,  he  was  laboring  under  such  a  de- 
fect of  reason,  from  disease  of  the  mind,  as  not  to  know  the 
nature  and  quality  of  the  act  he  was  doing,  or,  if  he  did,  not 
to  know  that  what  he  was  doing  was  wrong.  This  rule  is 
commonly  supposed  to  have  heretofore  been  adopted  by  this 
court,  and  has  been  followed  by  the  general  current  of  Amer- 
ican adjudications.  Boswcll  v.  State,  63  Ala.,  307  (36  Araer. 
Rep.,  20);  and  2  Lawson,  Crim.  Def.,  352;  McAllister  v.  State, 
17  Ala.,  434;  Lawson,  Insan.,  219-221,  231. 
In  view  of  these  conflicting  decisions,  and  of  the  new  light 


PARSONS  V.  STATE. 


271 


In 

It 

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in 


thrown  on  the  disease  of  insanity  by  the  discoveries  of  modern 
psychological  medicine,  the  courts  of  the  country  may  well 
hesitate  before  blindly  following  in  the  unsteady  footste|is 
found  upon  the  old  sandstones  of  our  common-law  jurispru- 
dence a  century  ago.  The  trial  court,  with  prudent  proprijty, 
followed  the  previous  decisions  of  this  court,  the  correctness 
of  which,  as  to  this  subject,  we  are  now  requested  to  review. 
We  do  not  hesitate  to  say  that  we  reopen  the  discussion  of 
this  subject  with  no  little  reluctance,  having  long  hesitated  to 
disturb  our  past  decisions  on  this  branch  of  the  law.  Nothing 
could  induce  us  to  do  so  except  an  imperious  sense  of  duty, 
which  has  been  excited  by  a  protracted  investigation  and  study, 
impressing  our  minds  with  the  conviction  that  the  law  of  in- 
sanity as  declared  by  the  courts  on  many  points,  and  espe- 
cially the  rule  of  criminal  accountability,  and  the  assumed 
tests  of  disease,  to  tliat  extent  which  confers  legal  irresponsi- 
bility, have  not  kept  pace  with  the  progress  of  thought  and 
discovery  in  the  present  advanced  stages  of  medical  science. 
Though  science  has  led  the  way,  the  courts  of  England  have 
declined  to  follow,  as  shown  by  their  adherence  to  the  rulings 
in  3lcNa(jhte)i.s  Case,  emphasized  by  the  strange  declaration 
made  by  the  lord  chancellor  of  England,  in  the  house  of  lords, 
on  so  late  a  day  as  March  11,  18G2,  that  "the  introduction  of 
medical  opinions  and  medical  theories  into  this  subject  has 
proceeded  upon  the  vicious  principle  of  considering  insduiti/  as 
a  disease.''^  It  is  not  surprising  that  this  state  of  affairs  has 
elicited  from  a  learned  law  writer,  who  treats  of  this  subject, 
the  humiliating  declaration  that,  under  the  influence  of  these 
ancient  theories,  "  the  memorials  of  our  jurisprudence  are  writ- 
ten all  over  with  cases  in  which  those  who  are  now  understood 
to  have  been  insane  have  been  executed  as  criminal."  1  Bish. 
Crim.  Law  (7th  ed,),  §  390.  There  is  good  reason  both  for 
this  fact  and  for  the  existence  of  unsatisfactory  rules  on  this 
subject.  In  what  we  say  we  do  not  intend  to  give  counte- 
nance to  acquittals  of  criminals,  frequent  examples  of  which 
have  been  witnessed  in  modern  times,  based  on  the  doctrine  of 
moral  or  emotional  insanity,  unconnected  with  mental  disease, 
which  is  not  yet  sufficiently  supported  by  psychology,  or  rec- 
ognized by  law  as  an  excuse  for  crime.  BoaweWs  CasejSupra; 
1  Whart.  Crim.  Law  (9th  ed.),  §  43. 


272 


AMERICAN  CRIMINAL  REPORTS. 


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In  ancient  times  lunatics  were  not  regarded  as  "  unfortunate 
sufferers  from  disease,  but  rather  as  subjects  of  demoniacal  pos- 
session or  as  self-made  victims  of  evil  passions."  They  were 
not  cared  for  humanely  in  asylums  and  hosi)itaIs,  but  were  in- 
carcerated in  jails,  punished  with  chains  aiul  strij^cs,  and  often 
sentenced  to  death  by  burning  or  the  gibbet.  When  put  on 
their  trial  the  issue  before  the  court  then  was  not  as  now.  If 
acquitted  they  could  only  be  turned  loose  on  the  comnuinity 
to  repeat  their  crimes  without  molestation  or  restraint.  They 
could  not  be  committed  to  hospitals,  as  at  the  ]>resont  day,  to 
be  kept  in  custodv,  cared  for  by  medical  attention  and  often 
cured.  It  was  not  until  the  beginning  of  the  present  century 
that  the  progress  of  Christian  civilization  asserted  itself  by  the 
exposure  of  the  then  existing  barbarities,  and  that  tiie  outcry 
of  philanthropists  succeeded  in  eliciting  an  investigation  of  the 
British  parliament  looking  to  their  suppression.  Up  to  that 
period  the  medical  treatment  of  the  insane  is  known  to  have 
been  conducted  upon  a  basis  of  ignorance,  inhumanity  and 
empiricism.  9  Amer.  C3'clop.  (1874),  tit.  "  Insanity."  Being 
punished  for  wickedness  rather  than  treated  for  disease,  this  is 
not  sur{)rising.  The  exposure  of  those  evils  not  only  led  to 
the  establishment  of  that  most  benelicent  of  modern  civilized 
charities  —  tlie  hospital  and  asylum  for  the  insane  —  but  also 
furnished  hitherto  unequaled  opportunities  to  the  medical  pro- 
fession of  investigating  and  treating  insanit\'  on  the  patholog- 
ical basis  of  its  being  a  disease  of  the  mind.  Under  these  new 
and  more  favorable  conditions  the  medical  jurisprudence  of 
insanity  has  assumed  an  entirely  new  phase.  The  nature  and 
exciting  causes  of  the  disease  have  been  thoroughly  studied 
and  more  fully  comprehended.  The  result  is  that  the  "  right 
and  wrong  test,"  as  it  is  sometimes  called,  which,  it  must  be 
remembered,  itself  originated  with  the  medical  profession,  in 
the  mere  dawn  of  the  scientific  knowledije  of  insanitv,  has 
been  condemned  by  the  great  current  of  modern  medical  au- 
thorities, who  believe  it  to  be  "  founded  on  an  ignorant  and 
imperfect  view  of  the  disease."  15  Encyclop.  Brit.  (Oth  ed.), 
tit.  "Insanit}'." 

The  question,  then,  presented  seems  to  be  whether  an  old 
rule  of  legal  responsibility  shall  be  adhered  to,  based  on  theo- 
ries of  physicians  promulgated  a  hundred  years  ago,  which 


PARSONS  V.  STATE. 


273 


refuse  to  rccop^nize  any  evidence  of  insanity  except  the  single 
test  of  inontal  capacity  to  distinguish  right  and  wrong,  or 
whether  the  courts  will  recognize  as  a  possible  fact,  if  capable 
of  proof  by  clear  and  satisfactory  testimony,  the  doctrine  now 
filloi^L'd  by  those  of  the  medical  profession  who  have  made  in- 
siiiiity  a  special  subject  of  investigation,  that  the  old  test  is 
wrong,  and  that  there  is  no  single  test  by  which  the  existence 
of  the  disease,  to  that  degree  which  exempts  from  punish- 
ment, can  in  every  case  be  infallibly  detected.  The  inquiry 
must  not  be  unduly  obstructed  by  the  doctrine  of  ftarc  decisis, 
for  the  life  of  the  common-law  system  and  the  hope  of  its 
permanency  consist  largely  in  its  power  of  adaptation  to  new 
scientific  discoveries  and 'he  requirements  of  an  ever-advanc- 
ing civilization.  There  is  inherent  in  it  the  vital  principle  of 
juridical  evolution,  which  preserves  itself  by  a  constant  struggle 
for  approximation  to  the  highest  practical  wisdom.  It  is  ncc 
like  the  laws  of  the  ^ledes  and  Persians,  which  could  not  be 
changed.  In  establishing  any  new  rule  we  should  strive,  how- 
ever, to  have  proper  regard  for  two  opposite  as])ccts  of  the 
subject,  lest,  in  tiio  words  of  Lord  Hale,  "  on  one  side  there  be 
a  kind  of  inlunnauity  towards  the  defects  of  human  nature,  or, 
on  the  other,  too  great  indulgence  to  great  crimes.'' 

It  is  evorywhei-e  admitted,  and  as  to  this  there  can  be  no 
doubt,  that  an  idiot,  lunatic,  or  other  person  of  diseased  mind, 
who  is  afllicted  to  such  extent  as  not  to  know  whether  he  \9r. 
doing  rigiit  or  wrong,  is  not  punishable  for  any  act  which  he 
may  do  while  in  that  state.  Can  the  courts  justly  say,  how- 
ever, that  the  only  test  or  rule  of  responsibility  in  criminal 
cases  is  the  jKJwer  to  distinguish  right  fiom  wrong,  whether  in 
the  abstract  or  as  applied  to  the  particular  case?  Or  may. 
there  not  be  insane  persons,  of  a  diseased  brain,  who,  while 
capable  of  perceiving  the  difference  between  right  and  wrong, 
are,  as  a  matter  of  tact,  so  far  under  the  duress  of  sveh  disease. 
as  to  destroy  the  power  to  choose  between  right  and  wrong? 
Will  the  courts  assume  as  a  fact,  not  to  be  rebutted  by  any 
amount  of  evidence  or  any  new  discoveries  of  medical  science, 
that  there  is  and  can  be  no  such  state  of  the  mind  as  that  de- 
scribed hy  a  writer  on  psvchological  medicine  as  one  "  in 
which  the  reason  has  lost  its  eni])ire  over  the  passions  and  the 
actions  by  which  the}'  are  manifested  to  such  a  degree  that  the 
Vol.  VII  — 18 


274 


AMERICAN  CRIMINAL  REPORTS. 


*  ^    a? 
Otfti'iAiS!,) 


individual  can  neither  repress  the  former  nor  abstain  from  the 
latter?"    Dean,  Med.  Jur.,  497. 

Much  confusion  can  be  avoided  in  the  discussion  of  this  sub- 
ject by  separating  the  duty  of  the  jury  from  tluit  of  the  court 
in  the  trial  of  a  case  of  this  character.  The  j)rovince  of  the 
jury  is  to  determine  facts,  that  of  the  court  to  state  ;.he  law. 
The  rule  in  IlcNayhten^a  Case  arrogates  to  the  court,  in  legal 
effect,  the  right  to  assert  as  matter  of  law  the  following  prop- 
ositions: (1)  That  there  is  but  a  single  test  of  the  existence  of 
that  degree  of  insanity  such  as  confers  irresponsibility  for 
crime;  (2)  that  there  does  not  exist  any  case  of  such  insanity 
in  which  that  single  test  —  the  capacity  to  distinguish  riglit 
from  wrong  —  does  not  appear;  (3)  tliatall  other  evidences  of 
alleged  insanity,  supposed  by  physicians  and  exports  to  indicate 
a  destruction  of  tlie  freedom  of  the  human  will,  and  the  irre- 
sistible duress  of  one's  actions,  do  not  destroy  his  mental 
capacity  to  entertain  a  criminal  intent. 

The  whole  difliculty,  as  justly  said  by  the  supreme  judicial 
court  of  New  Hampshire,  is  that  "courts  have  undertaken  to 
declare  that  to  be  law  which  is  inailcr  of  fad ^  "  If,"  ob- 
serves the  same  court,  "the  teats  of  insanity  are  matters  of 
law,  the  practice  of  allowing  experts  to  testily  what  they  are 
should  be  discontinued;  if  they  are  matters  of  fact,  the  judge 
should  no  longer  testify  without  being  sworn  as  a  witness  and 
showing  himself  to  be  qualilied  to  testify  as  an  expert."  State 
V.  Pike,  49  N.  II.,  390. 

We  first  consider  what  is  the  proper  lajal  rtde  of  responsibil- 
ity in  criminal  cases.  Xo  one  can  deny  that  there  must  be 
two  constituent  elements  of  legal  responsibility  in  the  com- 
mission of  every  crime, and  no  rule  can  be  just  and  reasonable 
which  fails  to  recognize  either  of  them:  (1)  Cajiacity  of  intel- 
lectual discrimination;  and  (2)  freedom  of  will.  Mr.  Wliarton, 
after  recognizing  this  fundamental  and  obvious  principle,  ob- 
serves: "  If  there  be  either  incapacity  to  distinguish  between 
right  and  wrong  as  to  the  particular  act,  or  delusion  as  to  the 
act,  or  inability  to  refrain  from  doing  the  act,  there  is  no  re- 
sponsibility." 1  Whart.  Crira.  Law  (9th  ed.),  §  33.  Says  Mr. 
Bisl.op  in  discussing  this  subject:  "There  cannot  be,  and  there 
is  not,  in  any  locality  or  age,  a  law  punishing  men  for  what 
they  cannot  avoid."     1  Bish.  Crim.  Law  (7th  ed.),  g  383^.     If, 


PARSONS  V.  STATE. 


275 


therefore,  it  be  true,  as  matter  of  fact,  that  the  disease  of  in- 
sanity can,  in  its  action  on  the  human  brain  through  a  shat- 
tered nervous  organization,  or  in  any  other  mode,  so  affect  the 
mind  as  to  subvert  the  freedom  of  the  will,  and  thereby  de- 
stroy the  power  of  the  victim  to  choose  between  the  ri^'lit  and 
wrong,  although  he  perceive  it, —  by  which  we  mean  the  power 
of  volition  to  adhere  in  action  to  the  right  and  abstain  from 
the  wrong, —  is  such  a  one  criminally  responsible  ^<>r  an  act 
done  under  the  influence  of  such  controlling  disease?  We 
clearly  think  not ;  and  such  we  believe  to  bo  the  just,  roas  -n- 
able  nnd  humane  rule,  towards  which  all  the  modern  authorities 
in  this  country,  legislation  in  England,  and  the  laws  of  other 
civilized  countries  of  the  world,  are  gradutiily  but  surely  tend- 
ing, as  we  shall  further  on  attempt  more  fully  to  show. 

We  next  consider  the  (piestion  as  to  the  p/'ohahle  existence  of 
such  <i  disease  and  the  ted  of  its  presence  in  a  given  case.  It 
will  not  do  for  the  courts  to  dogniatically  den\'  the  possible 
existence  of  sucii  a  ^//w<?,sr^,  or  its  patiiologicul  and  psychical 
eff^'cts,  because  this  is  a  matter  of  evidence,  not  of  law  or  judi- 
cial cognizance.  Its  existence,  and  edVct  on  the  mind  and 
conduct  of  the  patient,  is  a  (juestion  of  fact  to  be  proved,  just 
as  much  as  the  possible  existence  of  cholera  or  yellow  fever 
formerly  was  before  these  diseases  became  the  subjects  of  com- 
mon knowledge,  or  the  effects  of  delirium  from  fever,  or  intox- 
ication from  opium  and  alcoholic  stimulants  would  be.  The 
courts  could,  with  just  as  much  propriety,  years  ago,  have  denied 
the  existence  of  the  Copernican  system  of  the  universe,  the  effi- 
cacy of  steam  and  electrieit}'  as  a  motive  power,  or  the  possibil- 
ity of  communication  in  a  few  moments  between  the  continents 
of  Europe  and  America  by  the  magnetic  telegraph,  or  that  of 
the  instantaneous  transmission  of  the  human  voice  from  onedis- 
tant  city  to  another  by  the  use  of  the  telephone.  These  are 
scientific  facts,  first  discovered  by  experts  before  becoming 
matters  of  common  knowledge.  So,  in  like  manner,  must 
be  every  other  unknown  scientific  fact  in  whatever  profession 
or  department  of  knowledge.  The  existence  of  such  a  cerebral 
disease  as  that  which  we  have  described  is  earnestly  alleged 
by  the  superintendents  of  insane  hospitals,  and  other  experts, 
who  constantly  have  experimental  dealings  with  the  insane, 
and  they  are  permitted  every  day  to  so  testify  before  juries. 


276 


AMERICAN  CRIMINAL  REPORTS. 


;( 


\i'M}h 


The  truth  of  their  testimony  —  or,  what  is  the  same  thing,  the 
existence  or  non-existence  of  such  a  disease  of  the  mind  —  in 
each  particular  case  is  necessarily  a  matter  for  the  determina- 
tion of  the  jury  from  the  evidence. 

So  it  is  equally  obvious  that  the  courts  cannot,  upon  any 
sound  principle,  undertake  to  say  what  are  the  invariable  or  in- 
fallible tests  of  such  disease.  The  attempt  has  been  repeatedly 
made  and  has  proved  a  confessed  failure  in  practice.  "  Such  a 
test,"  says  Mr.  Bishop, "  has  never  been  found,  not  because  those 
who  have  searched  for  it  have  not  been  able  and  diligent,  but 
because  it  does  not  exist."  1  Bish.  Crim.  Law  (7th  ed.),  §  3S1. 
In  this  conclusion  Dr.  Ray,  in  his  learned  work  on  the  Medical 
Jurisprudence  of  Insanity,  fully  concurs.  Ray,  Med.  Jur. 
Insan.,  39.  The  symptoms  and  causes  of  insanity  are  so  vari- 
able and  its  })athology  so  complex  that  no  two  cases  may  be 
just  alike.  "  The  fact  of  its  existence,"  says  Dr.  Ray,  "  is  never 
established  by  any  single  diagnostic  symptom,  but  by  the 
whole  body  of  symptoms,  no  particular  one  of  which  is  present 
in  every  case."  Ray,  Med.  Jur.  Insan.,  $^  24.  Its  exciting 
causes  being  moral,  psychical  and  physical,  are  the  especial 
subjects  of  specialists'  study.  What  effect  may  be  exerted  on 
the  given  patient  by  age,  sex,  occupation,  the  seasons,  personal 
surroundings,  hereditary  transmission,  and  other  causes,  is  the 
subject  of  evidence  based  on  investigation,  diagnosis,  observa- 
tion and  experiment.  Peculiar  opportunities,  never  bftore 
enjo^'ed  in  the  history  of  our  race,  are  oll'ered  in  the  present 
age  for  the  ascertainment  of  these  facts,  by  the  establishment 
of  asylums  for  the  custody  and  treatment  of  the  insane,  which 
christian  benevolence  and  statesmanship  have  substituted  for 
jails  and  gibbets.  The  testimony  of  these  experts  —  differ  as 
they  may  in  many  doubtful  cases  —  would  seem  to  be  the  best 
which  can  be  obtained,  however  unsatisfactory  it  may  be  in 
some  respects. 

In  the  present  state  of  our  law,  under  the  rule  in  J/cJVaghteii'a 
Case,  we  are  confronted  with  this  practical  dilhculty,  which 
itself  demonstrates  the  defects  of  the  rule.  The  courts,  in 
effect,  charge  the  juries,  as  matter  of  law,  that  no  such  mental 
disease  exists  as  that  often  testified  to  by  medical  writers, 
superintendents  of  insane  hospitals,  and  other  experts;  tUat 
there  can  be,  as  matter  of  scientific  fact,  no  cerebral  delect, 


PARSONS  V.  STATE. 


277 


congenital  or  acquired,  which  (destroys  the  patient's  power  of 
self-control  —  his  liberty  of  will  and  action, —  provided  only 
he  retains  a  mental  consciousness  of  right  and  wrong.  The 
experts  are  immediately  put  under  oath,  and  tell  the  juries 
just  the  contrary,  as  matter  of  evidence;  asserting  that  no  one 
of  ordinary  intelligence  can  spend  an  hour  in  the  wards  of 
an  insane  asylum  without  discovering  such  cases,  and  in  fact 
that  "the  whole  management  of  such  asylums  presupposes  a 
knowledge  of  right  and  wrong  on  the  part  of  their  inmates." 
Guy  &  F.  Forensic  Med.,  220.  The  result  in  practice,  we 
repeat,  is  that  the  courts  charge  one  way,  and  the  jury,  fol- 
lowing an  alleged  higher  law  of  humanity,  find  another,  in 
harmony  with  the  evidence. 

In  Bucknill  on  Criminal  Lunacy,  59,  it  is  asserted,  as  "the 
result  of  observation  and  experience,  that  in  all  lunatics,  and 
in  the  most  degraded  idiots,  whenever  manifestations  of  any 
mental  action  can  be  educed,  the  feeling  of  right  and  wrong 
may  be  proved  to  exist." 

"With  regard  to  tiiis  test,"  says  Dr.  Russell  Reynolds  in  his 
work  on  the  Scientific  Value  of  the  Legal  Tests  of  Insanity,  34 
(London,  1872),  "I  may  say,  and  most  emphatically,  that  it  is 
utterly  untrustworthy,  because  untrue  to  the  obvious  facts  of 
nature." 

In  the  learned  treatise  of  Drs.  Bucknill  and  Tuke  on  Psvcho- 
logical  Medicine,  2u9  (4th  ed.,  London,  1879),  the  legal  tests 
of  responsibility'^  are  discussed,  and  the  adherence  of  the  courts 
to  the  right  and  wrong  test  is  deplored  as  unfortunate;  the 
true  principle  being  stated  to  be  "  whether,  in  consequence  of 
congenital  defect  or  acquired  disease,  the  poioer  of  self-control 
is  absent  altogether,  or  is  so  far  wanting  as  to  render  the  in- 
dividual irresjKjnsible."  It  is  observed  by  the  authors:  "As 
has  again  and  again  been  shown,  the  unconsciousness  of  right 
and  wrong  is  one  thing,  and  the  powerlessness,  through  cere- 
bral defect  or  disease,  to  do  right,  is  another.  To  confound 
them  in  an  asylum  would  have  the  effect  of  transferring  a  con- 
siderable number  of  the  in.u.  .es  chence  to  the  treadmill  or  the 
gallows." 

Dr.  Peter  Bryce,  superintendent  of  the  Alabama  Insane 
Hospital  for  more  than  a  quarter  of  a  century  past,  alluding 
to  the  moral  and  disciplinary  treatment  to  which  the  insane 


278 


AMERICAN  CRIMINAL  REPORTS. 


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inmates  are  subjected,  observes:  "They  are  dealt  with  in  tiiis 
institution,  as  far  as  it  is  practicable  to  do  so,  as  rational 
beings;  and  it  seldom  happens  that  we  meet  with  an  insane 
person  who  cannot  be  made  to  discern,  to  some  feeble  extent. 
his  duties  to  himself  and  others,  and  his  true  relations  to  so- 
ciety." Sixteenth  Ann.  Rep.  Ala,  Insane  IIosp.,  1870,  p.  22; 
Biennial  Rep.,  1886,  pp.  12-18. 

Other  distinguished  writers  on  the  medical  jurisprudence  of 
insanity  have  expressed  like  views,  with  comparative  unanim- 
ity. And  nowhere  do  we  lind  the  rule  more  emphatically 
condemned  than  by  those  who  have  the  practical  care  and 
treatment  of  the  insane  in  the  various  lunatic  asylums  of  every 
civilized  country.  A  notable  instance  is  found  in  the  follow- 
ing resolution,  unanimously  passed  at  the  annual  meeting  of 
the  British  Association  of  Medical  Officers  of  Asylums  and 
Hospitals  for  the  Insane,  held  in  London,  July  14, 1804,  where 
there  were  present  fifty -four  medical  officers:  "  Resolved,  that 
so  much  of  the  legal  test  of  the  mental  condition  of  an  alleged 
criminal  lunatic  as  renders  him  a  responsible  agent,  because 
he  knows  the  diflference  between  right  and  wrong,  is  incon- 
sistent with  the  fact,  well  known  to  every  member  of  this 
meeting,  that  the  power  of  distinguishing  between  right  and 
wrong  exists  very  frequently  in  those  who  are  undoubtedly 
insane,  and  is  often  associated  with  dangerous  and  uncontrol- 
lable delusions."  Judicial  Aspects  Insan.  (Ordronaux,  1877), 
423,  424. 

These  testimonials  as  to  a  scientific  fact  are  recognized  by 
intelligent  men  in  the  affairs  of  everx'-day  business,  and  are 
constantly  acted  on  by  juries.  They  cannot  be  silently  ignored 
by  judges.  Whether  established  or  not,  there  is  certainly  re- 
spectable evidence  tending  to  establish  it,  and  this  is  all  the 
courts  can  require. 

Nor  aro  the  modern  law  writers  silent  in  their  disapproval 
of  the  alleged  test  under  discussion.  It  meets  with  the  criti- 
cism or  condemnation  of  the  most  respectable  and  advanced 
in  thought  among  them,  the  tendency  being  to  incorporate  in 
the  legal  rule  of  responsibility  "  not  only  t/ie  knowledge  of  good 
and  evil,  but  the  power  to  choose  the  one  and  refrain  from  the 
other."  Browne,  Insan.,  ^§  13  et  aeq.,  18;  Ray,  Med.  Jur., 
§§  16-19;  1  AVhart.  &  S.  Med.  Jur.,  §  59;  1  Whart.  Crim.  Law 


PARSONS  V.  STATE. 


279 


(9th  ctl.),  §§  33,  43, 45 ;  1  Bish.  Crim.  Law  (7th  ed.),  §  386  et  seq.; 
Judicial  Aspects  Insan.  (Ordronaux),  419;  1  Greenl.  Ev.,  §  372; 
1  Steph.  Hist.  Grim.  Law,  §  168;  4  Amer.  Law  liev.  (1869-70), 
236  et  seq. 

The  following  practicable  suggestion  is  made  in  the  able 
treatise  of  Balfour  Browne  above  alluded  to:  "In  a  case  of 
alleged  insanity,  then,"  he  says,  "  if  the  iridi\Mduai  suffering 
from  enfeebleinent  of  intellect,  delusion,  or  any  other  form  of 
mental  aberration,  was  looked  upon  as,  to  the  extent  of  this 
delusion,  under  the  influence  of  duress  (the  dire  duress  of  dis- 
ease), and  in  so  far  incapacitated  to  choose  the  good  and  eschew 
the  evil,  in  so  far,  it  seems  to  us,"  he  continues,  "  would  the 
requirements  of  the  law  be  fulfilled;  and  in  that  way  it  would 
afford  an  oi)oning,  by  the  evidence  of  experts,  for  the  proof  of 
the  amount  of  self-duress  in  each  individual  ease,  and  thus  alona 
can  the  criterion,  of  law  and  the  criterion  of  the  inductive  science 
of  medical  j^sijchology  he  made  to  coincide.''^  Browne,  Insan., 
§  18.  This,  in  our  judgment,  is  the  practical  solution  of  the 
difficulty  before  us,  as  it  preserves  to  the  courts  and  the  juries, 
respectively,  a  harmonious  field  for  the  full  assertion  of  their 
time-liotioi'ed  functions.  So  great,  it  may  be  added,  are  the 
ombai  lassmenls  growing  out  of  the  old  rule,  as  expounded  by 
the  judges  in  the  house  of  English  lords,  that  in  March,  1874, 
a  bill  was  brought  before  the  house  of  commons,  supposed  to 
have  been  draughted  by  the  learned  counsel  for  the  queen,  Mr. 
Fitzjames  Stephen,  which  introduced  into  the  old  rule  the  new 
element  of  an  absence  of  the  power  of  self-control,  produced 
by  diseases  affecting  the  mind;  and  this  proposed  alteration 
of  the  law  was  cordially  recommended  by  the  late  Chief  Jus- 
tice Cockburn,  his  only  objection  being  that  the  principle  was 
proposed  to  be  limited  to  the  case  of  homicide.  1  Whart. 
Crim.  Law  (9th  ed.),  §  45,  p.  QQ,  note  1;  Browne,  Insan.,  §  10, 
note  1. 

There  are  many  well-considered  cases  which  support  these 
views. 

In  the  famous  Oase  of  Iladfield,  27  How.  State  Tr.,  1282  (3 
Lawson,  Crim.  Def.,  201-215),  who  was  indicted  and  tried  for 
shooting  the  king,  and  who  was  defended  bv  Mr.  Erskine  in 
an  argument  most  able  and  eloquent,  it  clearly  appeared  that 
the  accused  understood  the  difference  between  right  and  wrong 


' 


280 


AMERICAN  CRIMINAL  REPORTS. 


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as  applied  to  the  particular  act;  yet  he  labored  under  tl,o 
delusion  that  he  had  constant  intercourse  with  the  Divine 
Creator;  that  the  world  was  coming  to  an  end;  and  that, like 
Christ,  he  must  be  sacrificed  for  its  salvation.  He  was  so 
much  under  the  duress  of  the  delusion  that  he  "  must  be  de- 
stro^'ed,  but  ought  not  to  destroy  himself,"  that  he  committed 
the  act  for  the  specific  purpose  of  being  arrested  and  executed. 
He  was  acquitted  on  being  tried  before  Lord  Kenyon,  and,  no 
one  ever  doubted,  justly  so. 

Tlie  case  of  United  States  v.  Lawrence,  4  Cranch,  C.  C,  518, 
tried  in  1835,  presented  another  instance  of  delusion,  the  pris- 
oner supposing  himself  to  be  the  king  of  England,  and  the 
United  States  as  an  appendage  of  England,  and  that  General 
Jackson,  then  president,  stood  in  his  way  in  tlie  enjoyment  of 
the  right.  Acting  under  the  duress  of  this  delusion,  the  ac- 
cused assaulted  the  president  by  attempting  to  shoot  him 
with  a  j)islol.  He  was,  in  five  minutes,  acquitted  by  the  jury 
on  the  ground  of  insanity. 

The  case  of  United  States  v.  Guiieau,  10  Fed.  Eep.,  161 
(Lawson,  Crim.  Def.,  1G2),  is  still  fresh  in  coteraporary  recol- 
lection, and  a  mention  of  it  can  scarcely  be  omitted  in  the 
discussion  of  the  subject  of  insanity.  The  accused  was  tried, 
sentenced  and  executed  for  the  assassination  of  James  A. 
Garfield,  then  president  of  the  United  States,  which  occurred 
in  July,  ISSl.  The  accused  himself  testified  tliat  he  was  im- 
pelled to  commit  the  act  of  killing  by  inspiration  from  the  Al- 
mighty, in  order,  as  he  declared,  "  to  unite  the  two  factions  of 
the  republican  party,  and  thereby  save  the  government  f»'om 
going  into  the  hands  of  the  ex-rebels  and  their  northern 
allies."  There  was  evidence  of  various  symptoms  of  mental 
unsoundness,  and  some  evidence  tending  to  prove  such  an 
alleged  delusion,  but  there  was  also  evidence  to  the  contrary, 
strongly  supported  by  the  most  distinguislied  experts,  and  look« 
ing  to  the  conclusion  that  the  accused  entertained  no  such 
delusion,  but  that,  being  a  very  eccentric  and  immoral  man, 
he  acted  from  moral  obliquity,  the  morbid  love  of  notoriety, 
and  with  the  expressed  hope  that  the  faction  of  the  republican 
party,  in  whose  interest  he  professed  to  act,  would  intervene 
to  protect  him.  The  case  was  tried  before  the  United  States 
district  court  for  the  District  of  Columbia,  before  Mr.  Justice 


^WB 


PARSONS  V.  STATE, 


281 


Cox,  whose  charge  to  the  jury  is  roploto  with  interest  and 
learning.  While  he  adopted  the  right  and  wrong  lest  of 
insanity,  ho  yet  recognized  the  principle  that,  if  the  accused  in 
fact  entertained  an  insane  delusion,  which  was  tiie  product  of 
the  disease  of  insanity,  and  not  of  a  malicious  heart  and  vicious 
nature,  and  acted  solely  under  the  inlluonce  of  such  delu- 
sion, ho  could  not  he  charged  witli  entertaining  a  criminal 
intent.  An  insane  delusion  was  delined  to  bo  "an  unreason- 
ing and  incorrigible  belief  in  the  existence  of  facts  which  are 
either  impossible  absolutely,  or  impossible  under  the  circum- 
stances of  the  individual;  "  and  no  doubt  the  case  was  largely 
determined  by  the  application  of  this  definition  by  tlie  jury. 
It  must  ever  be  a  mere  matter  of  speculation  what  influence 
may  have  been  exerted  upon  them  by  the  higli  personal  and 
political  significance  of  the  deceased,  as  the  cliief  magistrate 
of  the  government,  or  other  peculiar  surroundings  of  a  partisan 
nature.  The  case  in  its  facts  is  so  peculiar  as  scarcely  to  serve 
the  purpose  of  a  useful  precedent  in  the  future. 

We  note  other  adjudged  cases,  in  tiiis  country,  which  support 
the  modern  rule  for  which  we  hero  contend,  including  one 
cited  in  England  as  far  back  as  1810,  often  referred  to  by  the 
text-writers.  In  Jiey.  v.  Oxford,  \i  Car.  ^  P.,  225,  Lord  Den- 
man  clearly  had  in  mind  this  principle  wlien,  after  observing 
that  one  may  commit  a  crime  and  not  be  responsible,  he  uses 
this  signiticant  language:  "  If  some  eoiitruUliKj  dlneane  was  in 
truth  the  acting  power  within  hiiti,  which  ho  could  not  resist, 
then  ho  will  not  be  responsible."  Tlie  accused  in  that  case 
acted  under  the  duress  of  a  delusion  of  an  insane  character. 

In  State  v.  Feller,  25  Iowa,  08,  tlio  capacity  to  distinguish 
between  right  and  wrong  was  held  not  to  be  a  safe  test  of 
criminal  responsibility  in  all  cases;  and  it  was  accordingly  de- 
cided that  if  a  person  commit  a  homicide  knowing  it  to  be 
wrong,  but  do  so  under  the  influence  of  an  uncontrollable  and 
irresistible  impulse,  arising  not  from  natural  passion,  but  from 
an  insane  condition  of  the  mind,  he  is  not  criminally  responsi- 
ble. "  If,"  said  Chief  Justice  Dillon,  "  by  the  observation  and 
concurrent  testimony  of  medical  men  who  make  the  study  of 
insanity  a  specialty,  it  shall  bo  definitely  established  to  be  true 
that  there  is  an  unsound  condition  of  the  n:in(l,  that;  is,  a  dis- 
eased condition  of  the  mind,  in  which,  though  a  person  ab- 


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282 


AMERICAN  CRIMINAL  REPORTS. 


stractly  knows  that  a  given  act  is  wrong,  he  is  yet,  by  an 
insatie  imjyulse,  that  is,  an  impulse  proceeding  from  a  diseasod 
intellect,  irresistibly  driven  to  commit  it,  the  law  must  modify 
its  ancient  doctrines,  and  recognize  the  truth,  and  give  to  this 
condition,  when  it  is  satisfactorily  shown  to  exist,  its  exculpa- 
tory effect." 

In  Uopps  V.  People^  31  111.,  385,  which  was  an  indictment  for 
murder,  the  same  rule  was  recognized  in  different  words.  It 
was  held  that  if,  at  the  time  of  the  killing,  the  defendant  was 
not  of  sound  mind,  but  affected  with  insanity,  and  such  disease 
was  the  efficient  cause  of  the  act,  operating  to  create  an  uncon- 
trollable impulse  so  as  to  deprive  the  accused  of  the  power  of 
volition  in  the  matter,  and  he  would  not  have  done  the  act 
but  for  the  existence  of  such  condition  of  mind,  he  ought  to  be 
acquitted. 

In  Bradley  v.  Slate,  31  Ind.,  492,  a  like  modification  of  the 
old  rule  was  announced,  the  court  observing:  "Men,  under 
the  influence  of  disease,  mav  know  the  riHit  and  vet  be 
powerless  to  resist  the  wrong.  The  well-known  exhibition  of 
cunning  by  persons  admitted  to  be  insane,  in  the  per|)etratioii 
of  an  illegal  act,  would  seem  to  indicate  comprehension  of  its 
evil  nature  and  legal  consequences,  and  yet,  the  power  of  self- 
control  being  lost  from  disease,  there  can  be  no  legal  res[)onsi- 
bility." 

In  Harris  v.  State,  18  Tex.  App.,  287  (5  Amer.  Crim.  Rep., 
357),  this  rule  was  applied  to  the  disease  known  as  "klepto 
mania,"  which  was  defined  as  a  species  of  insanity  producing 
an  uncontrollable  propensity  to  steal;  and  it  was  held,  if 
clearly  established  by  the  evidence,  to  constitute  a  complete 
defense  in  a  trial  for  theft. 

State  V.  Pike,  49  N.  H.,  399,  was  an  indictment  for  murder, 
to  which  the  plea  of  insanity  was  set  up  as  a  defense.  It  was 
held  to  be  a  question  of  fact  for  the  jury  to  determine,  (1) 
whether  there  was  such  a  mental  disease  as  dipsomania,  which 
is  an  irresistible  craving  for  alcoholic  liquors;  and  (2)  whether 
the  act  of  killing  was  the  product  of  such  disease.  One  of  the 
most  instructive  discussions  on  the  law  of  insanity  which  can 
be  found  in  legal  literature  is  the  learned  opinion  of  Mr.  Jus- 
tice Doe  in  that  case.  Lawson,  Insan.,  311,  312;  2  Lawson, 
Crim.  Def.,  Z\\  et  seq. 


PARSONS  V.  STATE. 


283 


This  rule  was  followed  by  the  same  court  in  State  v.  Jones, 
50  N.  II.,  3G9  (9  Amer.  Hep.,  242),  which  was  an  indictment 
charging  the  defendant  with  murdering  his  wife.  The  evi- 
dence tended  to  show  that  the  defendant  was  insane,  and  killed 
her  while  under  the  delusive  belief  that  she  had  been  guilty  of 
adultery  with  one  French.  The  rule  in  2rcNaghten''s  Case  was 
entirely  repudiated,  both  on  the  subject  of  the  right  and  wrong 
test  and  that  of  delusions,  and  it  was  held  that  the  defendant 
should  be  acquitted  if  he  was  tit  the  time  afflicted  with  a  dis- 
ease of  the  mind  of  such  character  as  to  take  away  the  capac- 
ity to  entertain  a  criminal  intent,  and  that  there  could  be  no 
criminal  intent  imputed  if,  as  a  matter  of  fact,  the  evidence 
showed  that  the  killing  was  the  offspring  or  product  of  such 
disease. 

Numerous  other  cases  could  be  cited,  bearing  on  this  partic- 
ular phase  of  the  law,  and  supporting  the  above  views  with 
more  or  less  clearness  of  statement.  That  snme  of  these  cases 
adopt  the  extreme  view,  and  recognize  moral  insanity  as  a 
defense  of  crime,  and  others  adopt  a  measure  of  proof  for  the 
establishment  of  insanity  more  liberal  to  the  defendant  than 
our  own  rule,  can  neitlier  lessen  their  weight  as  authority  nor 
destroy  the  force  of  their  logic.  Many  of  them  go  further  on 
each  of  these  points  than  this  court  has  done,  and  are  there- 
fore stronger  authorities  than  they  would  otherwise  be  in  sup- 
port of  our  views.  Kriel  v.  Coin.,  5  Bush,  3G2;  Smith  v.  Com., 
J.  Duv.,  224;  Dejarnette  v.  Com.,  75  Va.,  807;  Coyle  v.  Com., 
100  Pa.  St.,  573;  Cannhujhaiii  v.  Slate,  56  Miss.,  2(59;  Com,  v. 
Ro(jer?.,  7  Mete,  500;  State  v.  Johnson,  40  Conn.,  136;  Ander- 
sen V.  State,  43  Conn.,  514,  525;  Busw.,  Insan.,  §  439  et  seq.; 
State  V.  Meioherter,  46  Iowa,  88. 

The  law  of  Scotland  is  in  accord  with  the  English  law  on 
this  subject,  as  might  well  be  expected.  The  Criminal  Code 
of  Germany,  however,  contains  the  following  provision,  which 
is  said  to  have  been  the  formulated  result  of  a  very  able  dis- 
cussion both  by  the  physicians  and  lawyers  of  that  country : 
"  There  is  no  criminal  act  when  the  actor  at  the  time  of  the 
offense  is  in  a  state  of  unconsciousness,  or  morbid  disturbance 
of  the  \x\\nA,  through  which  the  free  determination  of  his  will 
is  excluded.^''  9  Encyclop.  Brit.  (9th  ed.),  112;  citing  Crim. 
Code  Germ.,  §  51,  R.  G.  B. 


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284 


AMERICAN  CRIMINAL  REPORTS. 


The  Code  of  France  provides:  "There  can  be  no  crime  or 
offense  if  the  accused  was  in  a  state  of  madness  at  the  time  of 
the  act."  For  some  time  the  French  tribunals  were  inclined 
to  interpret  this  law  in  such  a  manner  as  to  follow  in  substance 
the  law  of  England.  But  that  construction  has  been  abandoned, 
and  the  modern  view  of  the  medical  profession  is  now  adopted 
in  that  country. 

It  is  no  satisfactory  objection  to  say  that  the  rule  above 
announced  by  us  is  of  difficult  application.  The  rule  in 
McMaijlUeii's  Case,  supra,  is  equally  obnoxious  to  a  like  criti- 
cism. The  difficulty  does  not  lie  in  the  rule,  but  is  inherent  in 
the  subject  of  insanity  itself.  The  practical  trouble  is  for  the 
courts  to  determine  in  what  particular  cases  the  part}'  on  trial 
is  to  be  ti'ansl'erred  from  the  category  of  sane  to  that  of  insane 
criminals;  where,  in  other  words,  the  border  line  of  punish- 
ability is  adjudged  to  be  passed.  But,  as  has  been  said  in  ref- 
erence to  an  every-day  fact  of  nature,  no  one  can  say  where 
twilight  ends  or  begins,  but  there  is  ample  distinction  never- 
theless between  day  and  niyht.  We  think  we  can  safely  rely 
in  this  matter  upon  the  intelligence  of  our  juries,  guided  by 
the  testimony  of  men  who  have  practically  made  a  study  of 
the  disease  of  insanit}';  and  enlightened  by  a  conscientious 
desire,  on  the  one  hand,  to  enforce  the  criminal  laws  of  the 
land,  and,  on  the  other,  not  to  deal  harshly  with  any  unfortu- 
nate victim  of  a  diseased  mind,  acting  without  the  light  of 
reason  or  the  power  of  volition. 

Several  rulings  of  the  court,  including  especially  the  one 
given  ex  mero  niotu,  and  the  one  numbered  5,  were  in  conflict 
with  this  view,  and  for  these  errors  the  judgment  must  be  re- 
versed. The  charges  requested  by  the  defendant  were  all 
objectionable  on  various  grounds.  Some  of  them  were  imper- 
fect statements  of  the  rules  above  announced;  some  were  ar- 
gumentative, and  others  were  misleading  by  reason  of  ignor- 
ing one  or  more  of  the  essentials  of  criminal  irresponsibility, 
as  explained  in  the  foregoing  opinion.  It  is  almost  needless 
to  add  that  where  one  does  not  act  under  the  duress  of  a 
diseased  mind  or  insane  delusion,  but  from  motives  of  anger, 
revenge  or  other  passion,  he  cannot  claim  to  be  shielded  from 
punishment  for  crime  on  the  ground  of  insanity.  Insanity 
proper  is  more  or  less  a  mental  derangement,  co-existing  often, 


PARSONS  V.  STATE. 


285 


it  is  true,  with  a  disturbance  of  the  emotions,  affections  and 
other  moral  powers.  A  mere  moral  or  emotional  insanity,  so 
called,  unconnected  with  disease  of  the  mind,  or  irresistible 
impulse  resulting  from  mere  moral  obliquity,  or  wicked  pro- 
pensities and  habits,  is  not  recognized  as  a  defense  to  crime  in 
our  courts.  1  Whart.  Crim.  Law  (9th  ed.),  §  40;  Boswell  v. 
State,  63  Ala.,  307  (35  Amer.  Rep.,  20);  Ford  v.  Slate,  71  Ala., 
385. 

The  charges  refused  by  the  court  raise  the  question  as  to 
how  far  one  acting  under  the  influence  of  an  insane  delusion 
is  to  be  exempted  from  criminal  accountability.  The  evidence 
tendfd  to  show  that  one  of  the  defendants,  Mrs.  I^ancy  J. 
PiUttons,  acted  under  the  influence  of  an  insane  delusion  that 
the  ilc'ceased,  whom  she  assisted  in  killing,  possessed  supernat- 
ural power  to  afflict  her  with  disease,  and  to  take  her  life  by 
some  " su|)ernatural  trick;"  that  by  means  of  such  power  the 
deceased  had  caused  defendant  to  be  in  bad  health  for  a  long 
time,  and  that  she  acted  under  the  belief  that  she  was  in  great 
danger  of  the  loss  of  her  life  from  the  conduct  of  deceased 
operating  by  means  of  such  supernatural  power. 

The  rule  in  McNiujkten^s  Case,  as  decided  by  the  English 
judges,  and  supposed  to  have  been  adopted  by  the  court,  is 
that  the  defense  of  insane  delusion  can  be  allowed  to  prevail 
in  a  criminal  case  only  when  the  imaginary  state  of  facts 
would,  if  real,  justify  or  excuse  the  act;  or,  in  the  language  of 
the  English  judges  themselves,  the  defendant  "  must  be  con- 
sidered in  the  same  situation  as  to  responsibility  as  if  the  facts 
with  respect  to  which  the  delusion  exists  were  real."  Bos- 
weWs  Case,  G3  Ala.,  307.  It  is  ajiparent  from  what  we  have 
said  that  this  rule  cannot  be  correct  as  applied  to  all  cases  of 
this  nature,  even  limiting  it  as  done  by  the  English  judges  to 
cases  wlxM'o  one  "labors  under  partial  delusion,  and  is  not  in 
otlier  rer>pocts  insane."  j\IcjVa;/hieu''s  Case,  10  Clark  &  F., 
200;  Lawson,  Crim.  Def.,  150.  It  holds  a  partially  insane  per- 
son as  responsible  as  if  he  were  entirely  sane,  and  it  ignores  the 
possibility  of  crime  being  committed  under  the  duress  of  an 
insane  delusion,  opcratmg  upon  a  human  mind  the  integrity 
of  which  is  destroyed  or  impaired  by  disease,  except,  perhaps, 
in  cases  whore  the  imaginary  state  of  facts,  if  real,  would  ex- 
cuse or  justify  the  act  done  under  their  influence.    Field,  Med. 


286 


AMERICAN  CRIMINAL  REPORTS. 


i 


lii-     i 

If !  I 


UM 


x-m 


\..  ;.  ':.f\ 


Leg.  Guide,  101-104;  Guy  &  F.,  Forensic  Med.,  220.  If  the 
pule  declared  by  the  English  judges  be  correct,  it  necessarily 
follows  that  the  only  possible  instance  of  excusable  homicide,  in 
cases  of  delusional  insanity,  would  bo  where  the  delusion,  if 
real',  would  have  been  such  as  to  create,  in  the  mind  of  a  rea- 
sonable man,  a  just  apprehension  of  imminent  peril  to  life  or 
limb.  The  personal  fear  or  timid  cowardice  of  the  insane 
man,  although  created  by  disease  acting  through  a  prostrated 
nervous  organization,  would  not  excuse  undue  precipitation  of 
action  on  his  part.  Nothing  would  justify  assailing  his  sup- 
posed adversary  except  an  overt  act,  or  demonstration  on  the 
part  of  the  latter,  such  as,  if  the  imaginary  facts  were  real, 
would,  under  the  circumstances,  have  justified  a  man  perfectly 
sane  in  shooting  or  killing.  If  he  dare  fail  to  reason,  on  the 
supposed  facts  embodied  in  the  delusion,  as  perfectly  as  a  sane 
man  could  do  on  a  like  state  of  realities,  he  receives  no  mercy 
at  the  hands  of  the  law.  It  exacts  of  him  the  last  pound  of 
flesh.  It  would  follow  also,  under  this  rule,  that  the  partially 
insane  man,  afflicted  with  delusions,  would  no  more  be  excus- 
able than  a  sane  man  would  be,  if,  perchance,  it  was  by  his 
fault  the  difliculty  was  provoked,  whether  l)y  word  or  deed; 
or  if,  in  line,  he  may  have  been  so  negligent  as  not  to  have 
declined  combat  when  he  could  do  so  safely  without  increasing 
his  peril  of  life  or  limb.  If  this  has  been  the  law  heretofore 
it  is  time  it  should  bo  so  no  longer.  It  is  not  only  opposed  to 
the  known  facts  of  modern  medical  science,  but  it  is  a  hard 
and  unjust  rule  to  be  applied  to  the  unfortunate  and  providen- 
tial victims  of  disease.  It  seems  to  be  little  less  than  inluiman, 
and  its  strict  enforcement  would  probably  transfer  a  large  per- 
centage of  the  inmates  of  our  insane  hospitals  from  that  insti- 
tution to  hard  labor  in  the  mines  or  the  penitentiary  Its 
fallacy  consists  in  the  assumption  that  no  other  phase  of  delu- 
sion, proceeding  from  a  diseased  brain,  can  so  destroy  the 
volition  of  an  insane  person  as  to  render  him  powerless  to  do 
what  ho  knows  to  be  right,  or  to  avoid  what  he  may  know  to 
be  wrong.  This  inquiry,  as  we  have  said,  and  here  repeat,  is 
a  question  of  fact  for  the  determination  of  the  jury  in  each 
particular  case.  It  is  not  a  matter  of  law  to  be  decided  by  the 
courts.  We  think  it  sufficient  if  the  insane  delusion  —  by 
which  we  mean  the  delusion  proceeding  from  a  diseased  mind  — 


PARSONS  V.  STATE. 


287 


sincerely  exists  at  the  time  of  committing  the  alleged  crime, 
and  tlie  defendant,  believing  it  to  be  real,  is  sv.t  influenced  by  it 
tts  either  to  render  him  incapable  of  perceivin;;  the  true  nature 
and  quality  of  the  act  done,  by  reason  of  tlie  depravation  of 
the  reasoning  faculty,  or  so  subverts  his  will  as  to  destroy  his 
free  agency  by  rendering  him  powerless  to  resist  by  reason  of 
t/ie  dai'ess  of  the  disease.  In  such  a  case,  in  other  words,  there 
must  exist  eithei'  one  of  two  conditions:  (1)  Such  mental  de- 
fect as  to  render  the  defendant  unable  to  distinguisli  between 
right  and  wrong  in  relation  to  the  particular  act;  or  (2)  the 
overmastering  of  defendant's  will  in  consequence  of  the  insane 
delusion  under  the  influence  of  which  he  acts,  produced  by 
disease  of  the  mind  or  brain.  Bex  v.  Ilodfield,  27  How.  State 
Tr.,  1282  (2  Lawson,  Crim.  Def.,  201);  lioherts  v.  State,  3  Ga., 
310;  Com.  v.  liofjers,  7  Mete,  500;  State  v.  Wmsor,  5  liar. 
(Del),  512;  Busw.  Insan.,  §§  434,  440;  4  Amer.  Law  Eev. 
(1S09-70),  pp.  23G-252. 

In  conclusion  of  this  branch  of  the  subject,  that  we  may  not 
be  misunderstood,  we  think  it  follows  very  clearly  from  what 
we  have  said  that  the  inquiries  to  be  submitted  to  the  jury, 
then,  in  every  cviminal  trial  where  the  defense  of  insanity  is 
interposed,  are  these:  First.  "Was  the  defendant  at  the  time  of 
the  commission  of  the  alleged  crime,  as  matter  of  fact,  afflicted 
with  a  disease  of  the  mind,  so  as  to  be  either  idiotic,  or  other- 
wise insane.  Second.  If  such  be  the  case,  did  he  know  right 
from  wrong,  as  applied  to  the  particular  act  in  question?  If 
he  did  not  have  such  knowledge,  he  is  not  legally  responsible. 
Third.  If  he  did  have  such  knowledge,  he  may,  nevertheless, 
not  be  legally  responsible  if  the  two  following  conditions  con- 
cur: (1)  If,  by  reason  of  the  duress  of  such  mental  disease,  he 
had  so  far  lost  the  power  to  choose  between  the  right  and 
wrong,  and  to  avoid  doing  the  act  in  question,  as  that  his  free 
agency  was  at  the  time  destroyed;  (2)  and  if,  at  the  same 
time,  tlie  alleged  crime  was  so  connected  with  such  mental  dis- 
ease, in  the  relation  of  cause  and  effect,  as  to  have  been  the 
product  of  it  solely. 

The  rule  announced  in  BosiceWs  Case,  63  Ala.,  308,  supra, 
as  stated  in  the  fourth  head-note,  is  in  conflict  with  the  fore- 
going conclusions,  and  to  that  extent  is  declared  incorrect,  and 
is  not  supported  by  the  opinion  in  that  case  otherwise  than  by 


288 


AJIERICAN  CRIMINAL  REPORTS. 


*i; 


I'" 


?si'l:v«' 


,  J-    ■  1/;^' 


5* 


im 


li: 


i:^^'l 


dictum.  Wo  adhere,  howovor,  to  the  rule  doclarod  by  this 
court  in  Hoshy/Ph  Case,  supra,  and  followed  in  /)*/v/',«<  Canc^lX 
Ala.,  nsr),  holdin<^  that,  when  insanity  is  set  up  as  a  defense  in 
a  criminal  case,  it  must  bo  established,  to  the  satisfaction  of 
the  jur\%  by  a  pre|)on<leranco  of  the  evidence;  and  a  reason- 
able doubt  of  tlie  defendant's  sanity,  raised  by  all  the  evidence, 
does  not  authoi'izo  an  acquittal. 

Under  tiio  rule  announced  in  Ford  v.  State,  71  Ala.,  885, 397, 
and  autliorities  there  cited,  there  was  no  error  in  excluding  the 
proposed  statcini'ut  of  Mrs.  Nail.  This  testimony  was  defect- 
ive in  not  being  preceded  more  fully  by  the  facts  and  circum- 
stances upon  wliich  the  opinu)n  of  the  witness  as  to  the  sanity 
of  tho  accused  was  |)redicated,  the  witness  not  being  an  expert. 
Rogers,  Exp.  Test,  ij  01. 

Tho  other  i'ulin,',^s  of  tiie  court  need  not  bo  jonsidcrod  by  us. 

Tho  judguKMit  is  reversL><l  and  llio  cause  is  remanded.  In 
tho  meanwiiiic;  tlic  prisoners  will  be  held  in  custody  until  dis- 
charged by  duo  pri)C(;ss  of  law. 

Stone,  C.  J.,  dissenting. 


FoLWKM-  V.  State. 

(49  N.  J..  31.) 

Intent:  Stathtovij  friixci, 

1.  Malum  PROiirr,i:r?i  — Intent.— Wlion  n  Ptatnto  makes  indictfiblc  an 
act  wliich  is  im  rely  malum  prohlhitiun  wlicn  done  "  wilfully  and 
maliciously, "  liio  i-xistenco  (if  an  ovi!  miinl  in  dnini?  the  forbidden  act 
is,  as  a  frcncr.-il  rule,  a  constituent  jiart  of  the  olFense. 

3.  Pauticulaii  case. —  A  i)erson  was  indicled  under  tho  act  prohibiting 
the  wilfully  jiiid  malieiously  tearing  down  of  a  slu.'rilf.s  advertisement. 
IIcM,  tliat  tlu'  defendant  had  the  right  to  show  that  he  tore  down  such 
pnpcr  without  any  evil  design. 

On  Error  to  Oyer  and  Terminer  of  Atlantic  County. 
Argued  at  June  term,  188G,  before  Eeasley,  chief  justice, 
and  Justices  Depue,  Van  Syckel  and  Knapp. 

George  A.  Yroom,  for  plaintiff. 
Jo8.  Thompson,  for  the  state. 


FOLWELL  V.  STATE. 


289 


us 
71 
in 
of 
in- 


Bkaslky,  C.  J.  Tlio  defondant  wns  indicted  for  tearing 
down  an  ndvcrtiscmoiit  of  sale  sot  up  by  the  slierilf  bv  force 
of  an  execution.  The  defendant  in  this  prosecution  was  the 
(lefen(hint  in  tiio  execution,  and  liis  defense  at  the  trial  was 
tliat  he  took  down  the  advertisement  in  question  with  tlie  pur- 
pose of  sliowin<^  it  to  his  counsel,  and  that  ho  had  no  bad  pur- 
pose in  doing-  the  act.  In  his  charge  to  the  jury  on  this  head 
the  court  said: 

"  It  is  also  ar<,nu'd  that  the  act  of  taking  down  must  bo  ma- 
licious, and  that  malice  is  not  proven  in  this  case.  The  act 
must  be  malicious,  but  not  in  the  sense  which  the  counsel  of 
the  defense  has  argued  to  you.  What  is  meant  in  the  law  by 
malice?  It  only  means  tliat  a  person  has  the  intention  to  do 
the  act;  that  he  wilfully  docs  the  act  which  is  illegal.  lie 
mav  not  know  that  the  act  is  illegal,  but  if  he  wilfully  does  the 
act,  his  conduct  is,  in  the  eye  of  the  law,  illegal.  .  .  .  The 
malice  mentioned  by  the  statute  is  an  intentional  taking  down 
of  such  advertisement,  knowing  it  to  l)e  such." 

The  statutory  section,  thus  expounded,  is  in  these  words, 
viz. : 

"That  if  any  ])erson  shall  wilfully  and  maliciously  take 
down,  remove  or  injure  any  notice,  advertisement  or  other  pla- 
card which  shall  have  been  legally  and  j)ublicly  set  up  by  any 
oflicor  or  other  person  in  accordance  with  the  laws  of  this  state, 
before  the  time  to  which  said  notices  relate,  he  shall  be  deemed 
guilty  of  a  misdemeanor,"  etc.     Kovision,  221),  ^  1.5. 

From  this  collation  of  the  judicial  charge  with  the  act  to 
which  it  relates,  it  is  apparent  that  the  terms  "  wilfull}'  and 
nuiliciously,"  found  in  the  statute,  were  understood  to  have 
simply  the  force  of  "knowingly,"  and  that  as  a  supposed  con- 
sequence the  defendant  was  gudty  of  the  offense  charged  if 
he  took  down  the  advertisement  in  question  knowing  it  to  be 
such.  But  such  a  construction  cannot  be  made  to  consist 
either  with  legal  principles  or  with  the  decisions.  The  word 
"maliciously,"  when  used  in  the  definition  of  a  statutory 
crime,  the  act  forbidden  being  merely  malum  jjro/iibitum,  has 
almost  always  the  effect  of  making  a  bad  intent  or  evil  mind 
a  constituent  of  the  offense.  The  whole  doctrine  of  that  large 
class  of  offenses  falling  under  the  general  denomination  of 
"malicious  mischief"  is  founded  on  this  theory.  For  exam- 
Vol.  VII  — 19 


290 


AMERICAN  CRIMINAL  REPORTS. 


pie,  it  was  declared  by  the  supreme  court  of  Massachusetts,  in 
the  case  of  Com.  v.  Wahlcn,  3  Cush.,  558,  that  the  word  "ma- 
liciously," as  used  in  the  statute  relating  to  malicious  mischief, 
was  not  suHiciently  defined  as  "  the  wilfully  doing  of  any  act 
prohibited  by  law,  ard  for  which  the  defendant  has  no  lawful 
excuse,"'  l-ut  that,  to  the  contrary,  in  order  to  justify  a  convic- 
tion under  the  act  referred  to,  the  jury  must  bo  satisfied  that 
tiie  injury  was  done  either  out  of  a  spirit  of  wanton  cruelty  or 
of  wicked  revenge.  And  even  the  word  "  wilfully,"  in  the 
ordinars'  sense  in  which  it  is  used  in  statutes,  was  said  by  Chief 
Justice  Shaw  to  mean,  not  merely  "  voluntarily,"  but  to  imply 
the  doing  of  the  act  with  a  bad  purpose.  Coin.  v.  Iincehcnd, 
20  Pick.,  220.  This  same  signification  of  the  term  "wilful" 
'was  adopted  in  this  court  in  the  case  of  State  v.  Clarl\  5 
Dutcher,  00.  The  charge  being  that  the  defendant,  in  the  lan- 
guage of  the  .statute,  wilfully  destroyed  a  fence  on  land  in  the 
possession  of  another,  the  defendant  was  permitted  to  show 
that  he  did  the  act  under  claim  of  title  to  the  premises.  When 
a  statute  prohibits  an  act  if  done  intcnt'onally,  without,  to  such 
inhibition,  any  words  being  added  indicating  that  to  render 
the  forbidden  act  criminal  it  must  be  the  pioduct  of  an  evil 
mind,  it  becomes  a  pure  question  of  statutory  construction 
whether  or  not  the  anhinis  of  the  person  inculpated  is  an  ele- 
ment of  the  crime.  This  was  the  rule  adopted  in  the  court  of 
errors  in  the  case  of  Ilahted  v.  Strife,  12  Yroom,  552,  and  ex- 
emplified in  the  case  of  State  v.  Cnttcr,  7  Vioom,  125;  in  the 
hitter  a  se  the  court  deciding  that  the  mens  rea  was  an  ingre- 
dient of  the  statutory  offense,  although  the  legislative  language 
was  simply  prohibitive  of  the  act  described.  And,  indeed,  if, 
in  the  present  instance,  the  word  "  maliciously "  were  not 
found  in  this  act,  it  would  seem  to  be  the  rational  conclusion, 
from  the  nature  of  the  thing  prohibited,  that  it  could  not  have 
been  the  intention  of  the  law-maker  to  punish  the  taking  down 
of  one  of  these  advertisements  irrespectively  of  the  good  or 
evil  design  or  purpose  of  the  person  doing  the  act;  for  it 
would  appear  to  be  signally  absurd  to  suppose  that  the  owner 
of  property  could  not  remove  one  of  these  notices  from  the 
door  of  his  dwelling  if  the  officer  chose  to  put  it  there,  or  from 
a  wall  which  he  wished  to  repair,  without  committing  an  in- 
dictable offense. 
Let  the  judgment  be  reversed,  and  a  venire  de  novo  issue,  etc. 


STATE  V.  INTOXICATING  LIQUORS. 


291 


.,  in 
ina- 
lief, 
act 
vCul 


State  r.  Intoxicatino  Liquors. 

(80  Me.,  57.) 

iNTOXiCATlNa  liquors:  Trial  by  jury  — Constitutional  law. 

1.  Constitutional  law  —  Province  of  jury.—  Tlie  right  of  a  jury  to 

weigh  tlie  evidence  and  determine  therefrom  the  guilt  or  innocence  of 
the  accusad  cannot  be  destroyed  or  materially  impaired  by  the  legis- 
lature. 

2.  Evidence.— Under  Public  Lnws  of  Maine  for  1887,  chapter  140,  provid- 

ing that  the  payment  of  the  United  States  special  tax  as  a  liquor-seller 
is  prima  fade  evidence  that  the  person  paying  the  same  is  a  common 
seller  of  intoxicating  liquors,  it  is  error  to  instruct  the  jury  that  they 
must  find  such  person  guilty  upon  proof  of  such  fact  alonp,  since  the 
statute  only  means  to  make  such  evidence  competent  and  sufficient  to 
justify  a  verdict  of  guilty  if  the  jury  is  satisfied  of  defendant's  guilt 
beyond  a  reasonable  doubt.  • 

Exceptions  from  Superior  Court,  Cumberland  County. 

Searcii  and  seizure  of  intoxicating  liquors.  C.  II.  Gupp}' 
appeared  as  claimant,  and,  at  the  trial,  proof  of  the  payment 
by  the  claimant  of  a  United  States  special  tax  as  a  liquor-seller 
was  introduced  by  the  government  under  Public  Laws  of  1887, 
chapter  140,  which  provides  as  follows:  "  The  payment  of  the 
United  States  special  tax  as  a  liquor-seller,  or  notice  of  any 
kind  in  any  place  of  resort  indicating  that  intoxicating  liquors 
are  tliere  sold,  kept  or  given  away  unlawfully,  shall  be  held  to 
he  J)/' hit  a  facie  evidence  that  tite  person  or  persons  paying  said 
tax,  and  the  party  or  parties  displaying  said  notices,  are  com- 
mon sellers  of  intoxicating  liquors."  The  presiding  judge  in 
effect  instructed  the  jury  that  proof  of  such  payment  made  it 
their  duty  to  find  the  claimant  a  common  seller  of  intoxicating 
liquor,  and  to  this  ruling  the  claimant  excepted. 

Geo.  M.  Selders,  county  attorney,  for  the  state. 
JJ.  A.  MeaheVf  for  defendant. 


Walton,  J.  One  of  the  previsions  of  the  act  of  1887,  chap- 
ter 140  (amendatory  of  the  liquor  law),  declares  tht^t  payment 
of  the  United  States  special  tax  as  a  liquor-seller  shall  be  held 
to  be  lyrima  facie  evidence  that  the  one  paying  the  tax  is  a 
common  seller  of  intoxicating  liquors.    What  is  the  meaning 

'  See  note. 


i    I 


292 


AMERICAN  CRIMINAL  REPORTS. 


of  this  provision?    Does  it  impose  upon  the  court  the  duty  of 
instructing  the  jury  as  mutter  of  law  that  proof  of  such  pay- 
ment will  make  it  their  duty  to  find  the  defendant  guilty 
whether  they  believe  him  to  be  so  or  not?    It  is  a  suHicient 
answer  to  say  that  a  jury  cannot  bo  so  instructed  in  any  crim- 
inal case.     The  right  of  trial  by  jur}'  is  guarantied  b}'  the  con- 
stitution, and  it  is  not  within  the  province  of  the  legislature  to 
enact  a  law  which  will  destroy  or  materially  impair  the  right. 
The  very  essence  of  "  trial  by  jury  "  is  the  right  of  each  juror 
to  weigh  the  evidence  for  himself,  and,  in  the  exercise  of  his 
own  reasoning  faculties,  determine  whether  or  not  the  facts 
involved  in  the  issue  are  proved.     And  if  this  right  is  taken 
from  the  juror,  if  he  is  not  allowed  to  weigh  the  evidence  for 
himself,  is  not  allowed  to  use  his  own  reasoning  faculties,  but, 
on  the  contrary,  is  obliged  to  accept  the  evidence  aithe  weight 
which  others  have  aifixed  to  it,  and  to  return  and  affirm  a  ver- 
dict which  he  does  not  believe  to  be  true,  or  of  the  truth  of 
which  he  has  reasonable  doubts,  then,  very  clearly,  the  sub- 
stance, the  very  essence,  of  "trial  by  jury"  will  be  taken 
away,  and  its  form  only  will  remain.     And  if  the  enactment 
under  consideration  must  be  construed  as  having  this  effect, 
then,  ver}'  clearly,  it  is  unconstitutional  and  void.     But  we  do 
not  think  it  is  necessary  so  to  construe  it.     We  have  many 
similar  statutes,  in  some  of  which  the  words  used  are  ^''priuia 
facie  evidence,"  and  in  others  the  words  are  ^'■jm-fiianptive 
evidence."     We  cannot  doubt  that  these  phrases  are  intended 
to  convey  the  same  idea.     Thus  the  possession  of  a  dead  bird 
at  certain  seasons  of  the  year,  and  tlie  possession  of  a  muti- 
lated, uncooked  k>bster,  are  declared  to  be  prima  facie  evi- 
dence that  the  former  was  unlawfully  killed  and  that  the  latter 
was  less  than  ten  and  a  half  inches  long  when  taken ;  while 
the  possession  of  a  salmon  less  than  nine  inches  in  length,  or 
of  a  trout  less  than  five  inches  in  length,  is  declared  to  be 
presumptive  evidence  that  the}'  were  unlawfully  taken.     Sim- 
ilar provisions  exist  with  respect  to  the  possession  of  the  car- 
casses of  moose  and  deer  at  those  seasons  of  the  year  when  it 
is  unlawful  to  hunt  or  kill  them.     Can  it  bo  doubted  that  these 
provisions  all  mean  the  same  thing?    AVe  think  not.     And  wo 
are  not  aware  that  either  of  them  has  ever  been  construed  as 
making  it  obligatory  upon  the  jury  to  find  a  defendant  guilty 


STATE  r.  INTOXICATING  LIQUORS. 


203 


whether  they  believe  him  to  be  so  or  not.  They  mean  that 
such  evidence  is  competent  and  sufficient  to  justify  a  jury  in 
lindinj?  a  defendant  guilty,  provided  it  does,  in  fact,  satisfy 
them  of  his  guilt  beyond  a  reasonable  doubt,  and  not  other- 
wise. It  would  not  be  just  to  the  members  of  the  legislature 
to  suppose  that,  by  any  of  these  enactments,  they  intended  to 
make  it  obligatory  ujion  the  jury  to  find  a  defendant  guilty 
whether  they  believe  him  to  be  so  or  not.  It  is  a  well-settled 
rule  of  construction  that  if  a  statute  is  susceptible  of  two  inter- 
pretations, and  one  of  the  interpretations  will  render  the  stat- 
ute unconstitutional  and  the  other  will  not,  the  latter  should 
be  adopted.  If  it  be  thought  that  these  statutes,  and  especially 
the  one  now  under  consideration,  if  construed  as  above  indi- 
cated, add  nothing  to  the  weight  of  such  evidence,  it  will  be 
w  ell  to  remember  that  declaratory  statutes  are  not  uncommoa 
and  that  they  are  not  alwavs  useless.  Thev  often  serve  to  re- 
move  doubts  and  to  give  certainty  and  stability  to  a  rule  of 
law  which  it  did  not  before  possess;  and  that,  in  these  partic- 
ulars, the  act  under  consideration  may  be  regarded  as  a  wise 
and  useful  enactment. 

The  ruling  of  the  justice  of  the  superior  court  not  being  in 
harmony  with  this  interpretation  of  the  statute,  the  exceptions 
must  be  sustained  and  a  new  trial  granted.  But  the  motion  is 
not  ])roperly  before  us.  Motions  for  new  trials  in  criminal 
cases,  tried  in  either  of  the  superior  courts,  are  to  be  heard  and 
finally  determined  by  the  justices  thereof.  R.  S.,  ch.  77,  §  82. 
And,  altliough  this  is  a  proceeding  against  the  liquor  only, 
still  it  must  bo  regarded  as  a  criminal  case.  Slate  v.  liobinson, 
4*.)  Me.,  285.     Exceptions  sustained  and  a  new  trial  granted. 

Pktkks,  C.  J.,  ViKoiN,  LiimEY,  Foster  and  Haskell,  JJ., 
concurred. 


Note.—  See,  also,  Com.  v.  Uhrig,  140  Mass.,  138. 


891 


I 


AMERICAN  CRIMINAL  REPORTS. 


Jones  v.  State. 


V. 


m 


(07  Md.,  256.) 
Intoxicating  liquors  :  Local  option  —  Indictment. 

1.  Local  option  law  —  Indictment  —  Judicial  notice. —  An  indictment 

for  violating  a  local  option  law  need  not  contain  a  statement  of  all  tlie 
formalities  necessary  to  render  the  law  operative.  Such  laws,  though 
local,  are  public,  and  the  court  takes  judicial  cognizance  thereof. 

2.  Division  of  district  —  Indictment. —  Where  a  local  option  law  Roverns 

an  entire  district,  and  a  portion  of  said  district  is  cut  off,  and,  with 
other  territory,  receives  a  new  name,  the  local  option  law  still  remains 
operative  through  the  part  not  cut  off,  and  it  is  not  necessary,  in  an 
indictment  for  a  violation  of  the  law  in  the  jjortion  of  the  district  not 
cut  otT,  specifically  to  state  that  the  offense  was  not  committed  in  the 
part  of  the  district  which  was  cut  off. 

Writ  of  EiTor  to  Circuit  Court,  Dorchester  County. 

Clement  Sullivane  and  G.  It.   Willis,  for  appellant. 
Moherts,  attorney-general,  for  appellee. 

Irving,  J.  The  appellant  was  convicted  and  sentenced  for 
a  violation  of  the  act  of  18TS,  chapter  -KtS,  known  as  a  local  op- 
tion law  for  certain  districts  of  Dorchester  county.  That  law 
included  within  its  operation  Cambridge  district,  which  is  dis- 
trict No.  7.  The  indictment  charges  the  offense  to  have  been 
committed  in  Dorchester  county,  "and  election  district  number 
seven  thereof,  in  Avhicli  a  majority  of  tiie  qualified  voters 
thereof  cast  their  ballots  against  license  for  the  sale  of  spirit- 
uous or  fermented  liquors,  with  a  view  to  profit,  in  the  way  of 
trade." 

The  defendant  filed  a  special  plea  which  (without  setting 
out  the  same  totidem  verhin)  substantially  alleges  that  the  act  of 
18SG,  chapter  41,  changed  the  penalties  prescribed  by  the  act  of 
1878,  chai)ter  402,  under  which  the  prosecution  is  taken,  which 
change  operated  on  the  election  district  in  which  the  offense  is 
alleged ;  and  that  by  act  of  1880,  chapter  45G,  a  large  part  of  dis- 
trict No.  7  was  cut  off  from  it  and  formed  into  another  district. 
No.  14,  or  Linkwood  district;  and  that  by  act  of  1884,  chapter 
390,  a  different  penalty  was  fixed  for  selling  liquor  in  that 
part  of  district  No.  7  which  was  cut  off  from  it  and  put  into 
another  district,  and  at  no  time  has  a  majority  of  the  qualified 


JONES  V.  STATE. 


295 


voters  of  said  election  district  No.  7,  as  it  existed  at  the  time 
of  the  enactment  of  tiie  act  of  1880,  been  cast  against  license; 
and  that  district  No.  7,  as  it  existed  and  was  constituted  at  the 
time  of  the  onactinent  of  the  act  of  1878,  and  of  the  only 
election  held  thoi-eunder  in  November,  1878,  had  passed  out  of 
existence  at  the  time  of  the  enactment  of  the  act  of  1880,  and 
the  indictment  does  not  specify  in  what  part  of  the  district 
No.  7,  as  it  existed  at  the  time  of  the  passage  of  the  act  of 
1878,  the  offense  was  committed. 

To  this  plea  demurrer  was  interposed  and  sustained,  and  then 
appellant  pleaded  not  gudty,  was  tried,  convicted  and  sen- 
tenced, and  he  brings  the  case  to  us  on  assignments  of  error, 
Avhich  are  as  follows:  ''(I)  The  defendant  insists  that  the  in- 
dictment should  allege,  as  an  ingredient  of  the  olTeuso  charged, 
that  a  majorit}'  of  (lualilied  voters  of  district  No.  7  had  voted 
against  license  to  soil  spirituous  liquors;  (2)  that  the  act  of 
1S8G,  chapter  41,  in  connection  with  chai»ter  402,  acts  1S78, 
and  chapter  400,  acts  1880,  repealed  all  the  penalties  for  the 
sale  of  liquor  in  district  No.  7,  and  no  authority  existed  in  the 
court  either  to  lind  the  defendant  guilty,  or  pass  sentence  upon 
him." 

The  question  presented  by  the  first  error  assigned  is  not  in- 
volved in  the  plea  to  which  demurrer  wiis  interposed ;  and  it  is 
difficult  to  see  how  it  would  be  entertainable  here,  except  on 
the  theory  that,  under  the  demurrer  to  the  plea,  the  indictment 
was  necessarily  brought  to  the  court  lor  consideration,  and  had 
CO  be  passei.  up.on;  and,  if  that  was  wrong,  tliero  was  error  in 
overruling  it  as  to  the  plea,  because  it  mounted  to  the  lirst  error. 
Conceding,  without  deciding,  that  such  is  the  case  in  a  case  of 
this  kind,  and  on  assignment  of  error  the  question  is  properly 
presented  to  us,  an  examination  of  the  indictment  shows  there 
was  no  such  omission  as  is  alleged.     The  appellant's  counsel 
says  in  his  brief  that  by  accident  the  words  and  proclamation 
thereof  were  omitted  by  the  clerk  from  the  conclusion  of  that 
assignment  of  error.     Had  they  been  there,  the  assignment  of 
error  would  not  have  been  made  effectual;  for  in  S/i/mer  v. 
State,  02  Md.,  238,  the  precise  question  was  pi-esented,  and  it 
was  unequivocally  decided  that  a  demurrer  to  an  indictment, 
based  on  the  omission  from  the  indictment  of  the  conditions 
precedent  to  tiie  law  becoming  operative,  and  the  statement 


296 


AMERICAN  CRIMINAL  REPORTS. 


m 


that  those  conditions  had  been  fulfilled,  was  properly  over- 
ruled. The  court  takes  judicial  cognizance  of  all  such  laws. 
Though  local,  they  are  public,  and  not  private,  laws;  and  any 
question  affecting  the  legal  existence  of  the  law  belongs  to  the 
court.  It  was  not  necessary,  therefore,  for  the  indictment  to 
contain  a  statement  of  all  the  formalii'^s  necessary  to  precede 
the  law  becoming  operative.  They  were  not  facts  for  the  jury 
to  pass  upon,  and  had  no  proper  place  in  the  indictment,  S/y- 
mer's  Case,  62  Md.,  238,  and  Mac1dn?8  Case,  id.,  2U. 

The  second  ground  of  error  assigned  is  no  more  substantial. 
The  point,  as  we  apprehend  it,  presented  by  the  ])lea  and  as- 
signment of  error,  is  that,  by  the  conjoint  effect  of  several  acts 
of  assembly  changing  the  penalties  for  the  offense,  and  terri- 
torially dividing  district  Ko.  7,  this  district  has  lost  its  local 
option  law ;  in  other  words,  as  we  understand  it,  that  the  act 
of  1878  has  in  effect  been  repealed.  Clearly,  the  passage  of  the 
act  of  1880,  taking  a  part  of  district  No.  7  from  it,  and  with  it 
and  portions  of  other  districts  forming  a  new  district,  could 
not  possibly  change  the  law  operating  on  district  No.  7  as  it 
was  left.  It  was  still  district  No.  7,  if  it  was  not  as  large.  The 
case  of  IIi(j(fins  v.  State,  01  ]\ld.,  411)  (1  Atl.  Hep.,  S7(5j,  is  con- 
clusive of  the  question.  There  an  entirely  new  election  district 
was  carved  out  of  an  existing  election  district.  The  new  elec- 
tion district  included  witiiin  it  no  teriitor}'  except  that  which 
was  taken  from  the  district  which  was  divided.  A  local  option 
law  had  been  adopted  by  a  vote  of  the  people  in  the  undivided 
district  (^and  before  it  was  ihougljt  of  dividing  it,  perhaps).  It 
\Yas  operative  territorially  to  the  whole  extent  of  t'.ie  district, 
an^!  on  all  the  people  in  it.     That  part  of  the  territory  which 

■IS  taken  off  was  affected  by  the  law,  and  no  part  of  an}' other 
■*i;;i»ict  differently  affected  was  combined  with  it;  and  the  court 
A  that  the  law,  as  enacted  for  the  undivided  district,  fol- 
lowed the  several  portion,  which  was  made  a  district  in  itself, 
and  operated  in  it  and  on  its  people.  If  the  law,  which  operated 
on  the  whole,  followed  that  part  which  was  severed  and  given 
another  \-\Vi\x\Q,  a  fortiori  it  continued  in  force  in  that  part 
which  remained,  and  which  retained  the  district  name  for 
which  it  had  been  enacted.  But  it  is  argued  that  it  was  a  fatal 
omission  not  to  state  that  the  offense  was  not  committed  in  the 
l^art  of  the  district  which  was  taken  off.    When  it  is  charged 


PAGE  V.  STATK 


297 


to  have  been  committed  in  district  No.  7,  the  place  is  clearly 
stated;  and,  if  the  evidence  showed  it  was  committed  in  dis- 
trict Xo.  14,  the  traverser  would  be  acquitted  of  the  charge  as 
miule.  We  do  not  see  that  this  point  is  clearly  presented  by  the 
second  assi<;nment  of  error,  or  can  be  deduced  from  it;  but, as 
it  was  made  in  argument,  wo  thought  it  best  to  leave  no  room 
for  further  doubt  on  what  to  us  seems  so  clear. 

Tlie  traverser  was,  certainly,  clearly  told  by  the  indictment 
what  he  was  to  dcfcad  against.    Judgment  affirmed. 


Page  v.  State, 

(84  Ala.,  446.) 

Intoxicating  liquors:  Sale  to  minors — Indictment, 

1.  Sale  to  minohs  —  What  is.— Where  a  minor  approaches  a  bar  with 

one  wlio  calls  for  two  drinks  of  whisky,  and  two  glasses  and  a  bottle 
are  set  up,  and  both  drink,  the  bar-keeper  is  guilty  of  a  sale  of  gift  to 
the  minor,  though  he  did  not  know  one  of  the  drinks  was  intended  for 
bim.i 

2.  Indictment  —  Sufficiency  —  Consent  of  parents.—  An  indictment 

under  code  of  Aliihauui  of  187G,  section  4205,  charging  a  gift  or  .s.ale  of 
intoxicating  liquors  to  a  minor  "  without  the  requisition  of  a  physician, 
for  medical  purposes,"  charges  no  indictable  offense;  the  above  act 
having  been  amended  by  act  of  February  20,  1881,  under  which  the 
sale  is  legal  if  made  by  or  with  the  order  of  the  parent,  guardian,  or 
person  liuviiig  the  management  and  control  of  the  iiiinor,  or  upon  the 
prescription  of  a  physician.' 

Appeal  from  Circuit  Court  of  Jackson  County;  lion.  Leroy 
F.  Box,  Judge. 

Brown  tt"  Kh'l',  for  appellant. 

T.  N.  lEcCldlan,  attorney-general,  for  the  state. 

Stone,  C.  J.  The  defendant  was  indicted  under  section 
4205  of  the  code  of  1S70,  charging  that  he  sold  or  gave  away 
"  spirituous,  vinous  or  malt  liquors  to  Forest  Driver,  a  minor, 
without  the  requisition  of  a  physician,  for  medical  purposes." 

'  See  note. 


'''^^I'lm 


298 


AMERICAN  CRIMINAL  REPORTS. 


Iff       'i^    -n^^ 


V'<  >'  'f, 


Forest  Driver's  minority  was  clearly  proved,  and  it  was  both 
proven  and  admitted  that  Page,  a  saloon-keeper,  sold  the 
spirituous  liquor,  and  that  it  was  drunk  at  the  counter  of  the 
saloon  in  Pago's  presence.  The  case  is  not  distinguishable 
from  WhKo/i  v.  Suite,  02  Ala.,  197,  save  in  a  single  jiarticulur. 
presLMitly  to  be  pointed  out.  The  testimony  most  favorable  to 
the  accused  was  that  of  the  defendant  himself.  lie  testified  that 
"on  one  occasion  last  fall.  Driver's  uncle,  Dave  Driver, came 
into  my  saloon  and  called  for  two  drinks  of  liquor,  and  paid 
for  them,  lie  drank  one  and  handed  the  other  to  his  nephew, 
who  was  standing  near  by,  and  he,  Driver,  drank  it,  I  saw 
him  when  he  took  the  liquor  and  drank  it.  I  did  not  say  any- 
thing or  do  anything  to  prevent  his  talcing  the  drink,  but  I 
did  not  know  at  the  time  he  got  the  liquor  that  he  intended 
one  of  the  drinks  for  his  nephew.  Driver."  This  alleged  want 
of  knowledge  on  Page's  part  that  one  of  the  ('rinks  bought 
and  paid  for  by  Dave  Driver  was  intended  for  Forest  Driver, 
the  minor,  is  the  diirerencebeiween  tiiis  case  and  that  of  Wal- 
ton, fftipra.  Forest  Driver,  the  minor,  testilied  that  "on  one 
occasion,  in  the  fall  of  1SS7,  his  uncle,  Dave  Driver,  took  him, 
witness,  into  the  defendant's  saloon,  where  the  defendant  was 
at  the  tme  behind  the  counter  waiting  upon  customers,  and 
called  for,  whisky.  The  defendant  set  out  two  bar  glasses  and 
a  bottle  of  whisky  upon  the  counter,  and  he,  witness,  and  his 
uncle,  poured  out  a  drink  each  and  drank  it,  and  his  uncle 
paid  for  the  two  drinks."  Ilunbree,  Page's  clerk,  testified  that 
"on  two  or  more  occasions  he  had  seen  the  witness.  Forest 
Driver,  come  into  the  defendant's  saloon  with  other  persons, 
who  v.'ould  buy  whisky  at  defendant's  bar,  sometimes  from  the 
defendant,  and  sometimes  from  this  witness,  and  they  would 
drink  it  at  the  bar;  the  person  treating  young  Forest  Driver 
paying  for  it.  lie  thinks  he  saw  young  Driver's  uncle,  Dave 
Drivei',  do  this  on  one  occasion." 

Tiie  defendant  requested  the  court  to  charge  the  jury  that 
"  unless  the  defendant  knew  at  the  time  he  sold  the  liquor,  or 
received  the  mone}',  that  the  minor  was  going  to  drink,  the 
jury  sliould  find  the  defendant  not  guilty."  This  laid  down  too 
exacting  a  standard.  Dave  Driver  and  his  nephew  approached 
the  counter  together;  the  uncle  called  for  drinks  and  paid  for 
them ;  the  defendant  understood  the  number  of  drinks  wanted, 


PAGE  V.  STATE. 


299 


for  he  set  before  them  a  bottle  aiid  two  glasses,  and  the  two 
drunlv  together.  Now,  although  defendiint  could  not  know  as 
fact  that  the  uncle  intended  one  of  the  drinks  for  his  nephew, 
his  conduct  showed  that  he  understood  such  was  the  intention. 
Men  act  in  the  gravest  matters  on  ap])aarances  no  stronger 
than  were  shown  in  this  case.  Even  jurors,  who  impose  the 
heaviest  penalties  known  to  the  Criminal  Code,  do  not  know 
the  defendant  is  guilty.  They  act  on  convictions,  not  knowl- 
edge. Although  Page  did  not  know  that  one  of  the  drinks 
was  intended  for  the  minor,  the  circumstances  were  such  as 
reasonably  to  convince  him  of  what  was  intended. 

Our  statute,  as  formerly  existing  (Code  1870,  §  4205),  for- 
bade the  sale  or  gift  of  intoxicants  to  a  minor  without  the 
requisite  certificate  of  a  physician.  In  Walto)i''s  Cme  we  de- 
clared the  purpose  of  the  statute,  and  we  gave  full  elFect  to  it. 
We  upheld  his  conviction,  because  he  had  aided  and  pariici- 
pated  in  the  gift  of  an  intoxicating  drink  to  one  of  the  inter- 
dicted classes.  Less  than  the  rule  then  declared  would  have 
made  the  statute  so  easy  of  evasion  as  to  leave  it  practically 
worthless.  We  adhere  to  the  rule  then  declared.  The  statute 
under  which  the  conviction  was  had  in  this  case  was  amended 
by  act  ap|)roved  February  2G,  ISSl  (Sess.  Acts,  50;  Code 
18GG,  §  40.'}S.)  Since  then,  to  constitute  the  punishable  offense 
of  selling  or  giving  intoxicating  liquors  to  a  minor,  there  are 
two  categories  which  the  indictment  should  negative,  either  of 
which  legalizes  the  sale;  or  rather,  under  the  statute,  as 
framed,  there  ma}'  be  said  to  have  been  three.  The  sale  or 
gift  was  lawful  if  made  by  or  with  the  consent  of  the  parent, 
guardian,  or  person  having  the  management  and  control  of 
the  minor,  or  upon  the  prescription  of  a  physician.  The 
present  case  is  controlled  by  that  statute,  as  enacted,  for  it 
was  committed  before  the  code  of  18S0  went  into  effect.  The 
indictment,  being  framed  without  reference  to  the  amend- 
ment, is  imperfect  and  defective.  It  fails  to  charge  an  indict- 
able offense.  Biitton  v.  State,  77  Ala.,  202.  The  code  of 
18S6,  section  4038,  changes  the  phraseology  of  the  act  approved 
February  20,  1881.    Reversed  and  remanded. 

Note. —  Intoxicating  liquors  —  Sales  to  minora. —  Under  the  statutes  of 
Massachusetts  tlie  sale  or  delivery  of  intoxicating  liquor  to  a  minor  is 
e  jually  an  offense  wliether  made  for  the  use  of  tlie  minor  or  the  use  of  a 


\i 


800 


AMERICAN  CRIMINAL  REPORTS. 


■.■:.''>^: 


;•     < 


■"  %-■■ 


tliird  person.    Com.  v.  O'Lean/,  113  Mass.,  95.    The  same  Is  true  in  Mirhi- 
gan.    Peojilev.  Oarrctt,  36  N.  V.'.  Rep.,  234.    Contra  iiiulcr  tlie  stntiitos  of 
Connecticut.     State  v.  McMahoii,  53  Conn.,  407.    Sec,  as  to  the  snfUcieiicy 
nf  the  iiidictmiMit  in   sucli  cases,  O'liryan  v.  State,  A9  Ark.,  43.     A  s;ilc 
to  a  thiril  person,   as  agent  for  a  minor,  of  whicli  agency  the  liquov- 
selier  lias  no  knowledge,   is  not  a  siile  to  tlie  minor.    Cillan  v.  Stali\ 
47  Ark.,  555.     The  fact  that  the  fatlier  of  the  minor  aiitliorized  the  sale  is 
no  defense,  under  the  North  Carolina  act  forbidding  tiie  sale  in  any  man- 
ner, or  the  giving  away  of  intoxicating  drinks  or  liquora  to  ruinf>iH.    State. 
V.  Luicrenve,  17  N.  C,  493.     Under  tlie  Micliigan  statutes,  giving  aright  of 
action  to  any  one  injured  by  an  intoxicated  person  against  the  selhr  of  the 
intoxicating  liquor  to  such  person,  defendant  is  liable  for  injuries  caused 
by  a  minor  intoxicated  by  liquor  sold  by  defendant,  though  such  sale  was 
made  to  the  minor  with  his  father's  consent.    Flower  v,  U'/^/ioi'."*/.//,  37 
N.  W.  Rep.,  3(54.     A  physician  who  "  keeps  on  hand  intoxicating  drinks  or 
liquors  for  the  purpose  of  sale  or  profit"  is  within  tlie  defmition  of  a 
"dealer"  in  such  drinks,  and  is  guilty  of  a  violation  of  the  North  Caro- 
lina act  if  he  prescribes  for  a  minor,  knowing   him  to  bo  such,  drinks  or 
liquors  such  as,  in  his  judgment,  the  minor  ought  to  take  as  a  me<licine, 
and  thereupon  sells  or  gives  him  the  same,  even  if  ho  honestly  supposes 
that  such  act  is  not  forbidden   by  the  law.    State  t\  McBii/rr  (N.  C),  2 
S.  E.  Rej).,  755.    The  written  consent  of  the  father  of  a  minor,  as  follows: 
"  Please  let  my  son  John  have  anything  in  reason,  or  a  drink  when  he 
wants  it,  and  oblige  a  friend,"  —  sigiu'd  and  delivered  to  the  defendant  by 
the  father,  is  a  continuing  authority  to  soil  to  such  minor,  and,  until  re- 
voked, a  complete  defense  to  an  indictment  for  selling  liquor  to  such  minor 
in  ordinary  retail  quantities,  without  the  consent  of  his  parent  or  guardian. 
Mascowitz  v.  State,  49  Ark.,  170.     It  is  a  good  defense  to  an  indictment  for 
selling  intoxicating  liquor  to  a  minor,  under  the  Indiana  statute,  that  the  ac- 
cused made  the  sale  after  the  exercise  of  proper  caution,  in  the  reasonable 
and  honest  belief  that  the  purcliaser  w.as  of  lawful  age.    Kreamer  v.  State, 
C  N.  E.  Rep.,  841,  and  note.     But  the  accused  must  show  that  he  used  duo 
care  in  ascertaining  the  minor's  age,  and  mere  appearance  may  not  always 
be  sufficient.     Mulreed  v.  State,  107  Ind.,  62.    It  is  not  sulhcient  that  he  re- 
lied upon  the  minor's  representation.    Behler  v.  State,  112  Ind.  ^40. 

In  a  prosecution  for  allowing  a  minor  to  play  pool,  it  is  erroneous  to 
instruct  the  jury  that  they  may  take  '  '♦o  consideration  his  appearance,  as 
developed  while  testifying,  in  determining  whether  or  not  the  accused  be- 
lieved him  to  be  of  age.    104  Ind..  384. 


ALLISON  V.  COMMONWEALTH. 


301 


AlLISOX  v.  Co:«MOXWKALTn. 

(83  Ky.,  254.) 

Jurisdiction  ovnn  offense  op  nECEivirja  stolen  propeuty. 

Keceivino  stolen  property,  knowing  it  to  be  stolen,  is  a  complete  of- 
fense distinct  from  the  larceny  of  tiio  same  property,  and  the  circuit 
court  of  the  county  in  which  the  property  was  received,  and  not  of 
the  county  in  which  the  larceny  was  comniitti-d,  has  jurisdiction  o£ 
the  oflense  of  receiving  the  property,  knowing  it  to  bo  stolen.' 

P.  W.  TlariUn,  cattorney-general,  for  appellant. 
Watts  Parker^  for  appellee. 

Jiulge  Lewis  delivered  the  opinion  of  the  court. 

The  indictment  in  this  case,  found  in  the  Jessamine  circuit 
court,  but  tried  in  the  Fayette  circuit  court,  contains  two 
counts.  In  the  first  the  defendant  is  charged  with  the  crime 
of  horse-stealing,  and  in  the  second  Avith  receiving  stolen 
property,  knowing  it  to  bo  stolen.  And  the  main  question 
presented  on  his  appeal  from  the  judgment  of  conviction  is  as 
to  tlio  correctness  of  the  following  instruction: 

"  If  the  jury  believe  from  the  testimony,  to  the  exclusion  of 
a  reasonable  doubt,  that  tlie  defendant,  in  tlie  county  of  Jessa- 
mine, before  the  finding  of  the  indictment  herein,  either  alone 
or  in  company  with  another  or  others,  whom  he  being  present 
did  aid  or  abet,  feloniously  took  and  carried  away  the  horse 
mentioned  in  the  indictment,  the  property  of  liowland  Will- 
iams, or  feloniously  received  said  horse,  knowing  at  the  time 
he  received  it  that  it  had  been  stolen,  the  jur\'  should  find  the 
defendant  guilty  and  fix  his  punishment  at  confinement  in  the 
penitentiary  for  not  less  than  two  nor  more  tlian  ten  years." 

The  evidence  in  this  case  is  clear  that  the  horse  mentioned 
was,  some  time  during  Sunda_y  night  before  the  October  county 
court  of  Clark  county,  1883,  stolen  from  the  owner  in  Jessa- 
mine county,  and  was  on  the  next  day  in  the  possession  of  the 
defendant  in  AVinchester,  Clark  county,  when  and  where  he 
sold  it.  There  is  also  evidence  showing  that  the  defendant 
was  in  Jessamine  county  sometime  during  the  Sunday  the 
horse  was  stolen,  but  it  is  also  clearlv  established  that  he  was 

'  See  note. 


303 


AMERICAN  CRIMINAL  REPORTS. 


not  tlioro,  bnt  in  "Winchester,  during  that-  Sunday  nifjht,  and 
did  not,  in  porson,  actually  take  and  carry  away  the  animal 
from  the  owner. 

It  is  conclusive  that  the  offense  of  which  the  defendant  was 
by  the  jury  convicted,  though  not  stated  in  the  verdict,  was 
receiving  tiie  stolen  horse,  knowing  it  to  be  stolen,  as  charged 
in  the  second  count  of  the  indictment,  and  not  the  larcenv 
charged  in  the  first  count.  For  they  were  not  authorized  by 
the  evidviice  to  find  him  guilty  of  alone  taking  and  carrying 
away  the  horse;  nor  could  they  have  found  him  guilty  of  aid- 
ing and  abetting  another  in  the  larceny  without  disregarding 
the  instruction,  which,  as  worded,  required  them,  as  a  condi- 
tion, to  believe  him  present  when  the  horse  was  stolen. 

The  instruction  is  not  as  clear  and  plain  in  language  as  it 
should  be;  but  wo  are  satisfied  the  jury  construed  it  as  author- 
izing them  to  find  the  defendant  guilt}'  of  the  offense  charged 
in  the  second  count,  though  committed  in  the  county  of  Clark, 
as  there  was  no  evidence  it  was  committed  elsewhere.  Be- 
sides, the  bill  of  exceptions  shows  that  the  defendant  objected 
to  the  instruction  on  that  ground,  but  the  lower  court  refused 
to  modifv  it,  assuming  that  the  Jessamine  circuit  court  had 
jurisdiction. 

The  question  of  jurisdiction  teing  thus  prosented,  it  is  our 
duty  to  decide  it. 

Section  18,  Criminal  Code,  provides  that  "the  local  jurisdic- 
tion of  circuit  courts  .  .  .  shall  be  of  offenses  committed 
within  tlie  respective  counties  in  which  they  are  held," 

Section  21  is  as  follows:  "If  an  offense  be  committed  partly 
in  one  and  partly  in  another  county,  or  if  acts  and  their  effects 
constituting  an  offense  occur  in  different  counties,  the  jurisdic- 
tion is  in  either  count3\" 

In  our  opinion  the  sole  inquiry  necessary  is  whether  receiv- 
ing stolen  property,  knowing  it  to  be  stolen,  is  a  substantive 
offense  distinct  from  larceny  of  the  same  property.  For  if  it 
is,  then  only  the  circuit  court  held  in  the  county  where  it  may 
be  committed  can  take  jurisdiction. 

It  would  seem  the  General  Statutes  furnish  a  satisfactory 
answer  to  this  inquiry.  For,  while  the  same  punishment  is 
prescribed  for  the  two  offenses,  they  are  therein  recognized 
and  treated  as  separate  and  independent. 


\%li 


i 


mm 


ALLISON  V.  COMMONWEALTH. 


803 


Id 

ill 


^(1 
ly 
)y 

(1- 


Itccoivlng  stolen  property,  knowing  it  to  be  stolen,  is  itself 
a  complete  olFense.  It  is  not  necessary,  in  order  to  convict  of 
that  offense,  that  the  guilt  of  the  person  who  stole  the  prop- 
erty shall  bo  iirst  established,  nor  his  name  bo  known  or  even 
stated  in  the  indictment,  or  to  prove  the  accused  to  be  in  any 
way  connected  with  the  larceny.  The  gist  of  tho  ofFons;)  con- 
sists of  tho  guilty  knowledge  of  tho  property  having  been 
stolen. 

in  this  case  the  person  who  stole  the  horse  in  Jessamine 
county  is  not  known.  I>ut  tho  offense  charged  in  tho  second 
count  was,  according  to  the  evidence,  committed  by  the  de- 
fendant, if  at  all,  wholly'  in  Clark  county,  and  nothing  neces- 
sary to  constitute  the  olfenso  nor  a  part  of  it  was  done  in 
Jessamine  county. 

I.,  the  case  of  Tu////  v.  Commonujealth,  13  Bush,  142,  the 
defendant  was  indicted  in  tho  Scott  circuit  court,  charged  with 
the  offense  of  being  accessory,  after  the  fact,  to  the  commission 
of  the  crime  of  murder  in  that  county.  But  the  particular 
circumstances  of  the  offense,  which  consisted  in  furnishing  the 
person  charged  with  murder  with  money  while  in  the  course 
of  his  flight  with  wliicli  to  elfect  his  escape,  and  secreting  him 
for  that  purpose  from  arresL,  occurred  in  Logan  county.  In 
that  case  this  court  held  that,  as  the  accessorial  acts  were  all 
done  in  Loiran  countv,  the  Scott  circuit  court  had  no  iurisdic- 
tion.  And  if  this  rule  for  determining  criminal  jurisdiction  of 
circuit  courts  can  bo  applied  in  that  case,  we  see  no  reason 
why  it  should  not  govern  in  this. 

It  is  well  settled  that  a  tiiief  can  be  indicted  for  a  complete 
larceny,  either  in  the  county  where  he  first  took  the  property, 
or  in  any  other  into  which,  the  intent  to  steal  continuing,  he 
carries  it. 

This  doctrine  rests  upon  the  theory  that  the  title  and  legal 
possession  continues  in  'he  owner,  and  the  asporting  it  from 
the  countv  where  first  stolen  is  a  continuation  and  renewal  of 
the  offense.  And  section  18  of  the  code  just  quoted  was 
doubtless  intended  to  provide  for  such  case.  But  in  this  case 
the  inception  and  completion  of  the  offense  charged  in  the 
second  count  of  the  indictment  were  entirely  in  Clark  county, 
and  in  our  opinion  the  defendant  could  be  indicted  therefor 
only  in  that  county. 


i;;  M 


304 


AMERICAN  CRIMINAL  REPORTS. 


I: 


lite....  I 


Consequently  the  court  erred  in  instructing  tlie  jury  otlicr- 
wise,  and  the  judgment  must  be  reversed,  and  cause  remanded 
for  a  new  trial  and  further  proceedings  consistent  with  this 
opinion. 

Note. — Fahe  pretenses  —  Ordering  goods  by  letter —  Vemie. —  Upon  trial 
for  obtaiiiiiifi;  goods  by  false  pri'ti-nst's  by  moans  of  a  letter  jjivinj^  a  false 
statement  of  the  financial  stamli'ig  of  defendant's  firm,  it  ai)peared  that  the 
letter  was  written  and  mailed,  with  an  order  for  goods,  in  Jasper  county, 
to  a  firm  in  St.  Louis;  and  that  they,  relying  upon  the  statement,  filled  the 
order,  and  delivered  the  goods  to  a  railroad  company  in  St.  Louis,  con- 
signed to  defendant's  firm,  in  Jasper  county.  Held,  that  the  crime  was 
committed  in  St.  Louis  county.  State  v.  Lichleter,  95  Mo.,  403.  See,  also, 
Norris  v.  State,  25  Ohio  St.,  317. 


State  v.  Cady  et  al. 

(80  Me.,  413.) 

Jury  :  Challenges  —  Joint  indictment. 

1.  Challfnoes  — Joint  indictment. — Under  Revised  Statutes  of  Maine, 

chapter  83,  section  74,  giving  to  each  party  in  criminal  cases  not  capi- 
tal two  peremptory  challenges,  where  there  are  sevcml  defendants 
jointly  indicted,  they  are  jointly,  and  not  severally,  entitled  to  the 
'I'/emptory  challenges  allowed  by  statute. 

2.  LxcLUSiON  BY  THE  couuT  — EXCEPTIONS.—  Exceptions  do  not  lie  to  the 

exclusion  from  the  panel  of  a  juror  whom  one  defendant  objects  to 
and  another  defendant  desires  to  retain. 


Exceptions  from  Superior  Court,  Cumberland  County. 
Joint  indictment  for  keeping  and  maintaining  a  liquor  nui- 
sance.    The  o[)inion  states  the  facts. 


A. 


Geo.  M.  Seuhrs,  county  attorney,  for  the  state. 
Wilbur  F.  Lunt,  for  defendants. 

Petkrs,  C.  J.  Two  respondents  were  arraigned  together 
under  a  joint  liquor  indictment,  having  the  same  counsel  to 
answer  for  them.  The  judge  allowed  each  respondent  two 
peremptory  challenges  in  impaneling  the  jury;  and  when  one 
respondent  in  person  challenged  a  juror,  the  other  disputed  the 


STATE  V.  CADY. 


305 


I  cr- 
ied 
liis 


cliallengo,  claiming  that  he  had  a  right  to  have  the  chnllenged 
jiimr  on  the  panel.  One  respondent  accepted,  and  the  other 
rejected,  the  juror.  The  judge  accorded  to  them  two  chal- 
lenges each,  while  the}''  were  entitled  to  two  jointl}',  and  no 
more.  In  capital  cases,  each  prisoner  under  a  joint  trial  is 
entitled  to  his  personal  challenges.  The  statute,  in  that  case, 
proscribes  that  "  each  person  "  sliJiU  be  so  entitled.  In  all 
other  criminal  cases  it  is  "  the  party  "  that  is  entitled  to  the 
two  challenges.  If  they  do  not  agree  upon  the  persons  to  be 
objected  to,  the}'  lose  their  challenges.  The  presumption  is, 
where  respondents  in  criminal  cases  not  lately  capital  consent 
to  be  tried  together,  or  where  the  judge  in  his  discretion  orders 
a  joint  trial,  that  their  interests  are  alike,  and  differences  be- 
tween them  are  uncalled  for.  By  Revised  Statutes,  chapter 
134,  section  20,  it  is  provided  that  issues  in  fact  in  criminal 
cases  not  cauital  shall  be  tried  bv  a  iurv  drawn  and  returned 
in  the  same  manner,  and  challenges  shall  be  allowed  as  in  civil 
cases.  By  Revised  Statutes,  chapter  82,  section  74,  it  is  pro- 
vided that  in  civil  cases  and  criminal  cases  not  capital,  "each 
party  "  is  entitled  to  two  ])eremptory  challenges  when  a  jury 
is  imi)aneled  by  lot.  "  Party  "  does  not  mean  "  person."  Al- 
lowing challenges  without  cause  is  a  merely  statutory  right 
not  to  be  extended  by  construction.  Where  defendants  are 
numerous,  if  each  had  personal  challenges  it  would  require 
the  presence  of  an  imjjracticable  number  of  jurors.  This  ques- 
tion is  settled  by  several  authorities.  State  v.  lieed,  47  N.  H., 
46G;  StoDe  v.  Scfjin;  11  Allen,  568;  State  v.  Sutton,  10  R.  I., 
159.  These  cases  show  that  several  respondents  are  but  one 
party  and  are  en  tilled  to  no  more  challenges  than  one  defend- 
ant. But  if,  in  his  discretion,  the  judge  extended  a  greater 
privilege  than  the  statute  concedes,  neither  respondent  is  in  a 
position  to  ci^  ..plain  of  it.  AVe  have  held  in  Snoio  r.  Weels, 
75  Me.,  105,  that  to  a  ruling  of  a  judge  in  excusing  or  reject- 
ing a  juryman  exceptions  will  not  lie.  It  is  there  said:  "He 
may  put  off  a  juior  when  there  is  no  real  and  substantial  cause 
for  it.  That  cannot  legally  injure  an  objecting  part}'  as  long 
as  an  unexcejjtionable  jury  is  finally  obtained.  He  may  put  a 
legal  juror  olf.  He  cannot  allow  an  illegal  juror  to  go  on." 
Tills  question  was  exhaustively  and  learnedly  examined  in  a 
case  of  piracy  {C\  S.  v.  JLii'c/uint,  12  Wheat.,  480),  in  which 
Vol.  vil  — 30 


306 


AMERICAN  CRIMINAL  REPORTS. 


Judge  Story  maintained  the  same  doctrine,  and  he  there  says: 
"  The  right  of  peremptory  challenge  is  not  of  itself  a  right  to 
select,  but  a  right  to  reject,  jurors."  He  further  remarks  that 
the  right  "  enables  the  prisoner  to  say  who  shall  not  try  him, 
but  not  to  sa}'  who  shall  be  the  particular  persons  who  shall 
try  him." 

The  objection  to  the  county  attorney's  remarks  is  without 
force.  He  was  expressing  his  judgment  upon  the  testimony 
and  giving  illustrations  of  it  in  an  unobjectionable  manner. 
He  was  not  relating  outside  facts.  The  other  objections  have 
no  weight.    Exceptions  overruled. 

Waltox,  Danforth,  Viroix,  LiBBEY  and  Foster,  JJ.,  concur. 

Note. —  It  is  within  the  province  of  the  legislature  to  prescribe  the  mode 
and  manner  of  jury  trials  in  criminal  cjjses,  provided  it  does  not  impair  the 
right  itself.    In  re  Matron,  fiO  Vt.,  199. 

The  defendant's  right  to  jjeremptorily  challenge  a  juror  continues  until 
the  juror  is  sworn,  even  though  he  has  previously  accepted  him.  State  v. 
Spaulding,  00  Vt.,  228. 


Patterson  v.  State. 
(48  N.  J.  L.,  381.) 


^'•^n  .  <:■;;; 


,( 


Jury  :  Drawing  and  selecting  —  Challenge  —  Waiver. 

1.  Waiver  —  Proceeding  to  trial  by  defendant  waives  any  objec- 

tion to  performance  of  statutory  requirements.— In  n  criminal 
case  the  record  need  not  show  that  a  copy  of  the  indictment  and  a  list 
of  jurors  was  served  on  the  defendant  as  required  by  the  statute.  If 
the  defendant  proceeded  to  trial  without  objection  on  this  account  the 
presumption  against  him  is  conclusive  that  copies  were  duly  served. 

2.  "vViicLE  panel  summoned  need  not  be  present  when  cask  moved.— 

It  is  not  a  ground  of  exception  that  some  of  the  general  panel  of  jurors 
failed  to  answer  to  their  names  when  the  case  was  moved  for  trial. 
The  statute  now  requires  that  the  forty-eight  jurors  shall  be  sum- 
moned for  service,  and  that  a  list  of  them  shall  be  served  on  the 
defendant.  It  does  not  require  that  all  the  jurors  shall  be  present 
when  the  case  is  moved, 

8.  Court  may  excuse. — The  court  has  power  to  excuse  jurors  for  good 
cause. 

4.  Order  of  right  to  challenge  in  discretion  of  court.—  It  is  within 
the  discretion  of  the  court  to  determine  the  order  in  which  the  right  to 


PATTERSON  v.  STATE. 


307 


cliallenge  shall  be  exercised  by  the  state  or  by  the  defendant,  and  no 
exception  lies  to  the  exercise  of  that  discretion. 

5.  No  ERROR  TO  ORDER  SHERIFF  TO  HAVE  TALESMEN  PRESENT  ON  A  FUT- 

URE DAY. —  It  is  not  error  in  the  trial  couit  to  order  the  sheriff  to  have 
present  in  court  on  a  future  day  the  requisite  number  of  qualified 
jurors  to  serve  as  talesmen. 

6.  Talesmen  may  be  selected  from  any  part  op  :  ounty. —  It  is  not 

necessary  to  select  talesmen  from  those  actually  present  in  or  about 
the  court  room.  The  officer  may  go  out  into  the  county  ai;d  summon 
them. 

7.  Not  error  to  order  talesmen  when  part  of  original  panel  do 

NOT  ANSWER. —  There  was  no  error  in  ordering  the  tales  when  three 
of  the  original  panel  of  jurors  had  not  appeared  and  answered  to  the 
call  of  their  names. 

8.  Defendant  entitled  to  two  days'  service  of  tales.—  A  defendant 

is  entitled  to  two  days'  service  of  the  tales.  The  proper  practice  is, 
unless  service  is  waived  in  open  court,  to  adjourn  the  cause  for  the 
imrpoHo  of  ninkiii'g  service. 

9.  No  (1U(JIXD  FOR  KXtEPTION  THAT  TALES  DID  NOT  ALL   RESPOND,— The 

tales  having  been  duly  served  in  this  case,  it  was  not  a  legal  ground 
of  exception  that  three  of  the  talesmen  did  not  answer  to  their  names 
when  the  trial  proceeded. 

10.  No    GROUND    of    EXCEPTION    THAT    ONE  TALESMAN    IS    EXEMPT    FROM 

DUTY. —  It  is  not  ground  of  exception  that  one  of  the  talesmen  is  ex- 
empt from  jury  duty  That  which  exempts  but  does  not  disqualify  is 
no  cause  for  challenge. 

11.  Jurors  must  be  drawn  in  presence  of  the  court.— The  general 

jjaiiel  of  jurors  for  the  term  must  be  drawn  in  the  presence  of  the 
court  of  common  pleas.  In  Monmouth  county  the  presence  of  three, 
judges  is  necessary  to  constitute  the  court  of  common  pleas. 

12.  Challenges  —  Judge's  duty  to  try.— The  judge  of  the  court  hav- 

ing, under  our  statute,  the  duty  to  try  challenges,  his  finding  upon 
qui  stions  of  fact  involved  in  a  chnllcnge  is  conclusive.    His  decision  is 
reviewable  only  when  he  makes  n  mistake  in  principle  in  determining 
whether  a  challenge  shall  prevail. 
18.  Juror  having  acted  in  a  former  case  between  same  parties  has 

NOT  formed  an  opinion  SUFFICIENT  TO  SUSTAIN  A  CHALLENGE.— The 

fact  that  a  juror  had  served  in  another  case  of  the  state  against  the 
same  defendant  at  the  Kanie  teim,  and  that  he  had  formed  an  opinion 
in  that  case,  is  not  sufiicient  to  sustain  a  challenge  by  the  state. 


Ml 


m\ 


In  error. 

Wm.  T.  Hoffman  and  R.  T.  Sfovf,  for  plaintiff  in  error. 
Chas.  Ilalyht  and  John  W.  Swarts,  for  defendant. 


Van  Syckel,  J.     Tiie  defendant  below  was  convicted  in  the 
Monmouth  quarter  sessions  of  forgery.     During  the  progress 


,  ■■(  lA-, 


308 


AMERICAN  CRIMINAL  REPORTS. 


of  the  trial  inany  exceptions  were  taken  for  alleged  errors  in 
the  proceedings,  which  constitute  the  grounds  upon  which  a 
reversal  of  judgment  is  asked  for. 

In  the  early  days  of  English  criminal  jurisprudence,  when 
even  a  trifling  larceny  was  punishable  with  death,  there  was 
reason  why  the  judicial  mind  should  exhaust  its  ingenuity  in 
aid  of  the  defonse,  and  seize  upon  every  technicality  to  avert 
from  the  prisoner  a  punishment  so  disproportionate  to  his 
crime.  In  our  time  a  more  humane  S3'stem  of  criminal  law 
has  been  adopted,  which  graduates  the  punishment  according 
to  the  magnitude  of  the  offense,  and  in  which  there  is  nothing 
to  shock  our  sense  of  justice.  The  reason  for  resorting  to  mere 
technicality  to  enable  the  criminal  to  evade  the  sanctions  of 
the  law  no  longer  exists,  and  the  practice  to  which  that  rea- 
son led  should  therefore  cease.  Men  who  make  their  lives  a 
scourge  to  society  must  answer  its  violated  laws,  and  can 
justly  demand  in  a  judicial  tribunal  nothing  except  a  fair  trial 
according  to  the  laws  of  the  land,  in  which  no  substantial 
right  is  denied  them.  The  legislation  of  our  state  has  given 
expression  to  this  view  in  the  eighty-seventh  section  of  the 
criminal  procedure  act  in  the  following  language:  "No  judg- 
ment given  upon  any  indictment  shall  be  reversed  for  any 
imperfection,  omission,  defect  in  or  lack  of  form,  or  for  any 
error,  except  such  as  shall  or  may  have  prejudiced  the  defend- 
ant in  maintaining  his  defense  upon  the  merits."  It  is  of  the 
utmost  importance  to  society  that  its  criminal  classes  shall 
understand  that  the  penalty  surely  follows  the  crime.  With 
these  convictions  I  enter  upon  the  consideration  of  the  ques- 
tions involved  in  this  controversy. 

The  criminal  procedure  act  provides  that  the  defendant  shall 
have  a  copy  of  the  indictment  and  a  list  of  the  jury  two  entire 
days  at  least  before  the  trial,  and  that  he  shall  not  be  put  upon 
his  trial  without  his  consent  deliberately  expressed  in  open 
court,  unless  he  had  such  jury  list  duly  served.  The  first  error 
assigned  is  that  the  record  does  not  show  that  a  copy  of  the 
indictment  and  list  of  jurors  was  served  as  required  by  the 
statute.  The  answer  is  that  the  record  need  not  show  com- 
pliance with  the  statute  in  this  respect.  The  presumption  is 
that  all  things  were  rightly  done.  The  defendant  knew  his 
rights,  and,  if  he  proceeded  to  trial  without  objection  on  this 


PATTERSON  v.  STATE. 


809 


in 
h  a 


account,  the  presumption  against  him  is  conclusive  that  the 
copies  were  duly  served.  If,  by  the  record,  it  appeared  that 
he  had  objected  on  that  ground  in  the  trial  court,  and  it  had 
tliere  appeared  that  the  jury  list  had  not  been  served,  it  would 
be  essential  to  the  validity  of  the  judgment  that  it  appear  of 
record  that  the  defendant's  consent  to  be  i)ut  upon  trial  was 
deliberately  expressed  in  open  court.  In  this  respect  no  error 
is  apparent.  Intendment  will  be  made  against  the  party  ex- 
cepting, and  in  favor  of  the  judgment.  Powell,  App.  Jur., 
p.  129,  §  21. 

The  second  assignment  of  error  is  that  the  facts  set  forth  in 
said  cause  do  not  constitute  any  crime  committed  against  the 
laws  of  the  state.  The  point  made  is  that  the  evidence  did 
not  justify  conviction;  that  the  jury  should  have  resolved  the 
doubt  in  the  case  in  favor  of  the  defendant,  and  rendered  a 
verdict  of  acquittal.  That  question  cannot  be  considered  on 
a  writ  of  error.  If  the  premises  are  well  founded,  it  consti- 
tuted good  ground  for  an  application  for  a  new  trial.  There 
was  sufficient  evidence  to  go  to  the  jury,  and  it  was  submitted 
with  proper  instructions  by  the  court. 

The  third  assignment  of  error  is  that  the  court  allowed  the 
call  of  the  jury  to  proceed  before  all  the  jurors  were  present, 
and  without  a  full  list  thereof.  The  record  shows  that,  after 
the  challenge  to  the  array  was  overruled,  the  court  ordered 
the  list  of  jurors  to  be  called.  Uj)on  the  call  six  jurors  did  not 
answer.  The  counsel  of  defendant  objected  to  proceeding 
until  all  the  jury  were  present.  Tiio  objection  was  overruled, 
and  the  names  of  the  forty-eight  jurors  summoned  were  put 
in  the  box,  from  which  the  jury  for  this  cause  was  drawn.  If 
it  is  necessary  that  every  juror  of  the  forty-eiglit  summoned 
for  service  at  the  term  should  be  present  in  court  when  a  case 
is  called  for  trial,  it  would  be  quite  impossible  to  conduct  the 
prosecution  of  criminal  trials  successfully.  Our  statute  requires 
only  that  the  list  of  forty-eight  jurors  be  served.  It  does  not 
require  that  all  the  jurors  shall  be  present  when  the  case  is 
mo\ed.  The  language  of  the  section  with  respect  to  a  tales 
clearly  shows  that  the  presence  of  all  is  not  essential.  It  pro- 
vides that  if,  by  reason  of  challenges  or  the  default  of  jurors, 
or  otherwise,  a  sufficient  number  cannot  be  had  of  the  original 
panel  to  try  the  issue,  a  talcs  may  bo  awarded.    The  power 


-^:i 
:-|l 


i'i;-! 


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m 

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\\n  % 


«} 


310 


AMERICAN  CRIMINAL-  REPORTS. 


of  the  court  to  excuse  a  juror  from  the  general  panel  for  cause 
is  recognized  in  this  as  well  as  in  other  states.  Smith  v.  Chuj- 
ton,  5  Butcher,  358;  Ware  v.  Ware,  8  Me,,  42;  Slate  v.  Ward, 
39  Vt.,  230. 

As  the  fourth  ground  for  reversal  the  defendant  assigns  for 
error  that  the  court  below  refused  to  direct  that  the  state 
should  challen;,''  '  t  On  the  trial  of  a  capital  case,  reported 
in  Com.  V.  r^2  '"''  ^lass.,  185,  it  was  held  that  it  is  within 
the  discretion  oi  UiO  court,  in  the  absence  of  statutory  regula- 
tion or  a  genercl  rule  oi  court,  to  determine  the  order  in  wliich 
the  right  to  cjaller:^^  si  ,  t  be  exercised,  by  the  state  or  by 
the  defendant,  and  no  exieplioii  les  to  the  exercise  of  that  dis- 
cretion. The  same  rule  has  been  adopted  in  other  states,  and 
I  deem  it  to  be  well  founded  in  reason.  State  v.  Pll'e,  40  X.  11., 
390,  406;  Manufactitrhuj  Co.  v.  Canncy,  54  N.  II.,  295;  Schuf- 
flln  V.  State,  20  Ohio  St ,  233. 

The  next  alleged  error  is  that  the  court  ordered  the  sheriff 
to  summon  forty-two  qualified  jurors  to  serve  as  talesmen  in 
said  cause  on  the  following  Monday.  It  has  long  been  settled, 
both  in  England  and  in  this  country,  that  it  is  not  necessary 
to  select  talesmen  from  persons  accidentally  present  in  court. 
They  may  be  persons  whose  presence  the  sheriff  has  taken  pre- 
vious means  to  obtain.  5  Bac.  Abr.,  "  Juries,"  D.,  337;  Hex  v. 
Dolly,  2  Barn.  &  C,  104.  State  v.  Allen,  47  Conn.,  121,  was 
a  capital  case.  The  court,  before  the  trial  commenced,  ordered 
the  sheriff  to  have  in  attendance  men  from  whom  talesmen 
could  be  chosen  for  the  trial  of  that  cause.  Tiie  court  of  re- 
view held  that  the  sheriff  might  take  talesmen  from  those  in 
attendance,  or  he  might  go  outside,  according  to  his  discretion, 
and  that  there  was  no  error  in  the  court  suggesting  to  the 
sheriff  to  have  proper  men  in  attendance.  In  United  Slates  v. 
Lougheri),  13  Blatch.,  2G7,  Judge  Benedict  ruled  that  the  mar- 
shal may  select  talesmen  from  those  not  present  in  or  about 
the  court-house;  and  that,  when  they  were  returned  by  the 
officer,  they  became  by-standers  within  the  meaning  of  the 
statute.  State  v.  Bird,  14  Ga.,  43,  was  also  a  capital  case,  in 
which  the  trial  court  directed  the  sheriff  to  send  out  into  the 
county  and  have  in  attendance  a  large  number  of  citizens  to 
act  as  talesmen  if  necessary.  The  appellate  court  said  it  was 
not  error;  but,  on  the  contrary',  a  commendable  practice  cal- 


PATTERSON  v.  STATE. 


311 


use 


iin 
a- 


culated  to  secure  a  fair  jury  and  prevent  delay.  It  is  within 
the  general  power  which  every  court  has,  to  arrange  the  order 
of  business,  and  provide  for  the  probable  necessities  which 
ma}'  arise  in  the  conduct  of  a  trial.  This  construction  gives 
full  effect  to  the  language  of  our  statute,  which  directs  the 
shcrilF  to  summon  the  tales  from  "the  by-standers  or  others." 
There  was  no  error  in  this  direction  to  the  sheriff. 

Kor  was  there  error  in  ordering  the  tales  when  three  of  the 
original  panel  had  not  appeared  and  answered  to  the  call  of 
their  names. 

Nor  can  the  defendant  avail  himself  of  the  objection  that  of 
tlie  forty-two  talesmen  summoned  only  thirty-nine  appeared 
and  answered  to  their  names.  As  has  been  before  stated,  the 
law  requires  only  that  the  tales  as  well  as  the  original  panel 
shall  be  summoned  and  the  list  served.  The  presence  of  every 
juror  when  the  list  is  called  is  not  essential. 

It  is  also  assigned  for  error  that  the  court  below  ordered  the 
sheriff  to  serve  the  list  of  talesmen  on  the  defendant  not  later 
than  Saturday  morning,  July  11,  at  half-past  9,  and  that  the 
trial  was  ])roceeded  with  on  Monday  morning,  July  13.  In 
State  V.  Aaron,  -1  X.  J.  Law,  232,  the  right  of  the  prisoner  to 
two  entire  days'  service  of  the  tales  was  recognized.  The 
proper  practice  now  is,  unless  service  is  waived  in  open  court, 
to  adjourn  the  cause  for  the  purpose  of  making  service.  In 
the  case  before  us,  although  the  order  of  the  court  was  that 
service  miglit  be  made  as  late  as  Saturday  morning,  it  was  in 
fact  made  on  Friday  evening,  July  10,  two  entire  days  before 
the  trial  proceeded,  and  therefore  the  defendant  had  no  legal 
ground  of  complaint  in  that  respect. 

A  further  ei'ror  is  assigned  that  the  sheriff  did  not  return 
qualified  jurors  to  serve,  one  of  said  jurors  being  exempt  by 
law  from  jury  duty.  The  juror  in  question  was  duly  qualified 
to  serve,  but  had  a  right,  on  his  own  motion,  to  be  excused 
from  service.  That  which  exempts,  but  does  not  disqualify,  is 
no  ground  for  challenge.     1  Archb.  Crim.  Pr.,  549. 

The  next  assignment  of  error  is  the  refusal  of  the  trial  court 
to  sustain  the  defendant's  challenge  to  the  array.  The  chal- 
lenge interposed  was  made  on  the  ground  that  the  court  of 
common  pleas  before  which  the  general  panel  of  jurors  was 
drawn  for  tlie  term  was  not  legally  constituted.     In  this  re- 


812 


AMERICAN  CRIMINAL  REPORTS. 


1 


spect  the  statute  (Kevision,  533,  pi.  44)  is  mcandatory;  in  other 
respects  it  is  directory  except  as  to  the  certificate.  Poulson  v. 
Union  Nat.  Bank,  40  N.  J.  Law,  5G3.  The  challenge,  inter- 
posed in  writing,  was  that  Judge  Ilenuncusou  .vas  not  present 
at  the  drawing  of  the  jury,  and  that  but  two  judges  were 
present,  and  also  that  but  two  judges  signed  the  certificate. 
This  the  defendant  offered  to  prove.  Tiie  record  before  us 
shows  that  this  offer  of  the  defendant  was  overruled.  We  must 
therefore  assume  the  fact  to  be  that  but  two  judges  were  pres- 
ent. Did  a  duly-constituted  court  certify  to  the  return  of  the 
general  panel  of  jurors.  In  this  case  only  two  judges  of  the 
court  of  common  pleas  were  present  when  the  panel  of  jurors 
was  drawn  and  certified.  The  laws  of  180D,  page  081,  sec- 
tion 1,  provide  that  the  court  of  common  pleas  for  the  county 
of  Monmouth  shall  consist  of  four  judges,  in  addition  to  the 
justice  of  the  supreme  court  holding  the  circuit  in  said  count}'. 
The  laws  of  1873,  page  428,  in  order  to  explain  the  true  con- 
struction of  the  above  act  "in  respect  to  the  number  of  judges 
necessary  to  constitute  the  courts  of  common  pleas,  general 
quarter  sessions  and  orphans'  court  of  said  county,"  provide 
that  any  two  of  said  judges  shall  be  sufficient  to  make  and 
constitute  the  court  of  quarter  sessions,  and  any  three  of  said 
judges  shall  constitute  the  court  of  common  pleas.  These  are 
special  laws,  but  they  were  passed  before  the  constitutional 
amendments  prohibiting  special  and  local  legislation,  and 
therefore,  to  constitute  a  court  of  common  pleas  in  Monmouth 
county,  tlie  presence  of  three  judges  is  indispensable  unless 
this  special  legislation  has  been  repealed.  The  state  claims 
that  the  act  of  April  5,  1878  (Pamph.  L.,  315),  and  the  act  of 
March  11, 1880  (Pamph.  L.,  240),  must  be  held  to  have  that  effect. 
The  former  act  provides  "  that  hereafter  the  number  of  lay 
judges  of  the  inferior  court  of  common  pleas  shall  consist  of 
two  in  those  counties  having  a  law  judge,  and  of  three  in  all 
other  counties;  provided,  this  act  shall  not  apply  to  counties 
having  a  population  of  more  than  fifty  thousand  inhabitants 
according  to  the  last  census."  The  latter  act  provides  (1) "  that 
no  further  appointments  of  lay  judges  of  the  inferior  courts  of 
common  pleas  in  the  respective  counties  of  this  state  shall  be 
made  until  the  number  of  such  judges  shall  be  reduced  to 
two  in  counties  having  a  law  judge,  and  three  in  all  other 


PATTERSON  v.  STATE. 


313 


\nt 

Ite. 
us 
list 
jcs- 
he 
he 


counties,  and  thereafter  there  shall  be  but  two  lay  jiul/i^es  of 
such  court  in  counties  having  a  law  judge,  and  not  more  than 
three  lay  judges  in  all  other  counties;  (2)  that  any  action  of 
said  court  requiring  the  concurrence  of  three  judges  shall  be 
valid  and  effectual  when  concurred  in  by  a  majority  of  the 
judges  of  said  court."  It  is  not  necessary  to  decide  whether 
this  general  legislation  applies  to  Monmouth  county.  Conced- 
ing that  it  does,  it  in  nowise  affects  the  requirement  of  the 
special  law  that  three  judges  must  be  present  to  constitute  a 
court  of  common  pleas  in  Monmouth  county.  The  utmost 
effect  that  can  be  given  to  the  second  section  of  the  act  of 
1880  is  that,  when  the  court  is  legally  constituted  —  that  is, 
when  in  Monmouth  county  three  judges  are  present  —  any  act 
theretofore  requiring  the  concurrence  of  three  judges  will  be 
valid  if  concurred  in  b}^  a  majority  of  the  judges.  The  certifi- 
cation of  the  general  panel  of  jurors  was  not  the  act  of  the 
court  of  common  pleas,  the  panel  not  having  been  drawn  in 
presence  of  a  lawful  court,  and  therefore  the  trial  court  erred 
in  overruling  the  challenge  of  the  defendant  to  the  array. 

The  remaining  questions  to  be  considered  relate  to  chal- 
lenges to  the  favor.  At  common  law,  upon  the  trial  of  such 
challenges,  the  finding  of  the  triers  as  to  facts  was  not  review- 
able. The  functions  of  the  triers  being,  by  our  statute,  vested 
in  the  trial  court,  the  finding  of  the  judge  upon  questions  of 
fact  involved  in  a  challenge  are  conclusive.  The  decision  of 
the  judge  is  the  subject  of  exception  only  when  he  makes  a 
mistake  of  principle  in  determining  whether  the  challenge 
shall  prevail.  Under  a  system  of  criminal  jurisprudence  which 
shields  a  defendant  by  the  presumption  of  innocence,  by  a 
liberal  right  of  peremptory  challenge,  and  by  the  necessity  of 
a  unanimous  verdict  to  convict,  courts  of  review  should  not  be 
astute  to  seize  upon  ground  for  reversal  where  the  challenge 
by  the  state  to  the  favor  has  been  successfully  made.  There 
should  be  very  clear  error  to  constitute  a  mistrial. 

The  state  challenged  Sidney  11.  Sproul  to  the  favor.  It  ap- 
peared that  at  the  same  term  he  had  served  as  a  juror  in  an- 
other case  of  the  state  against  the  same  defendant  Patterson, 
in  which  he  had  formed  an  opinion;  but  he  stated  that  he 
knew  nothing  about  the  present  case,  and  supposed  he  could 
try  it  according  to  the  evidence.    Two  other  jurors  were  chal- 


314 


AMERICAN  CRIMINAL  REPORTS. 


^ri'M 


1  ;-r>*h 


;iV:;t: 


'J 


ii^:^P 


I'M 


I    ■  (■     ,H 


,  lip; 


'J: 


lenged  by  the  state  for  like  cause,  and  the  challenges  were 
sustained  by  the  court.  "It  is  no  legal  objection  to  a  juror 
that  he  hud  been  one  of  the  jury  in  another  cause  against  tin; 
same  defendant  for  a  different  offense."  U.  S.  v.  M^'atkins,  ',i 
Cranch,  C.  C,  443.  The  fact  that  jurors  have  tried  and  con- 
victed a  defendant  of  a  crime  does  not  disqualify  them  from 
sitting  as  jurors  in  the  trial  of  another  indictment  against  him 
for  a  similar  offense  at  the  same  term.  Coiu.  v.  IfiU,  4  Alien, 
591;  Thomp.  &  M.  Jur.,  194,  195.  In  sustaining  these  chal- 
lenges the  trial  court  erred. 

The  state  also  challenged  William  J.  Johnson  to  the  favor, 
because  it  appeared  that  the  defendant  is  a  brother  to  one 
Austin  Patterson,  and  that  the  said  Austin  Patterson  and  the 
father  of  said  Johnson  married  sisters.  This  was  no  legal 
ground  of  challenge,  and  it  was  eri'oneously  sustained. 

The  defendant  challenged  John  S.  Hubbard  to  the  favor, 
because  he  was  tenant  in  common  of  certain  real  estate  with 
two  of  the  indorsers  on  the  promissory  notes  alleged  to  have 
been  forged  by  the  defendant.  This  challenge  was  properly 
overruled. 

For  the  reasons  given  the  judgment  must  be  reversed  and 
a  new  trial  ordered. 


Peopi.e  v.  De  Leon. 

(109  N.  Y.,  226.) 
Kidnaping:  False  2ireteiise  in  procuring  consent. 

What  constitutes  —  False  pretense. —  Where  defendant  induced  a 
female  voluntarily  to  take  passage  for  a  foreign  port,  under  pretense 
that  he  had  there  obtained  employment  for  her,  but  intending  to  place 
her  in  a  house  of  prostitution,  and  it  appears  that  she  would  not  have 
consented  to  go  but  for  such  false  pretense,  he  is  guilty  of  the  offense 
defined  in  3  Revised  Statutes  of  New  York,  part  4,  title  2,  section  28 
(Penal  Code,  g  211).  which  provides  that  one  who,  without  lawful  au- 
thority, inveigles  another,  with  intent  to  cause  him  to  be  sent  out  of 
the  state  against  his  will,  shall,  upon  conviction,  be  punished,  etc. 

Appeal  from  General  Term,  Supreme  Court,  First  Depart- 
ment. 

Indictment  of  John  De  Leon  for  kidnaping.  Defendant 
was  convicted,  and  appeals. 


PEOPLE  V.  DE  LEON. 


315 


crc 

I'm- 
til.. 

on- 
oin 


John  D.  Townsend,  for  appellant. 

.loJm  li.    l^elloioa,  district  attorney  {James  Fitzgerald^  of 
counsel),  for  the  people. 

• 

Anduewh,  J.  The  indictment  in  the  first  count  charges  that 
the  defendant  on  the  1st  day  of  September,  1886,  at  the  city 
of  Jfew  York,  with  force  and  arms,  did  "  feloniously  and  wil- 
fully inveigle  and  kidnap  one  Sarah  Bowes,  with  intent  to 
cause  her,  the  said  Sarah  Bowes,  without  authority  of  law,  to 
bo  taken  out  of  the  state,  and  to  be  kept  and  detained  against 
her  will."  The  second  count  is  like  the  first,  except  that  it 
charges  that  the  intent  of  the  defendant  was  to  send  the  said 
Surah  Bowes  against  her  will  to  Aspinwall,  in  the  state  of 
Panama.  The  evidence  on  the  part  of  the  prosecutor,  which 
was  uncontradicted,  shows  that  the  defendant,  under  the  false- 
pretense  that  emjiloyment  had  been  secured  for  her  as  a  gov- 
erness in  the  family  of  one  Madame  De  Blen  at  Panama,  in- 
duced the  prosecutrix  to  take  passage  on  a  steamer  for  Aspin- 
wall, for  the  purpose  of  engaging  in  that  service,  when  in  truth 
and  in  fact  the  said  Madame  De  Blen  was  the  keeper  of  a  house 
of  prostitution  at  Panama,  for  which  the  defendant  acted  as 
procurer;  and  that  his  object  and  purpose  in  inducing  the 
prosecutrix  to  go  to  Panama  were  that  she  should  become  an 
inmate  of  such  house.  Fortunately,  before  reaching  Aspin- 
wall, the  prosecutrix  was  apprised  of  the  true  character  of 
Madame  De  Blen,  and,  by  the  aid  of  fellow-passengers,  was 
enabled  to  return  to  New  York,  and  was  thereby  rescued  from 
the  fate  to  which  the  defendant  sought  to  consign  her. 

The  only  serious  question  is  whether  the  evidence  made  out 
an  offense  within  section  211  of  the  Penal  Code.  The  section 
defines  the  crime  of  kidnaping,  and  in  the  first  subdivision 
declares  that  a  person  who  "  seizes,  confines,  inveigles  or  kid- 
naps another,  with  intent  to  cause  her,  without  authority  of 
law,  to  be  securely  confined  or  imprisoned  within  this  state,  or 
to  be  sent  out  of  the  state,  or  to  be  sold  as  a  slave,  or  in  any 
way  held  to  service,  or  kept  or  detained  against  her  will,"  is 
guilty  of  kidnaping.  There  was  no  actual  enforcement  or  de- 
tention of  the  prosecutrix,  nor  any  actual  force  used  by  the 
defendant.  The  prosecutrix  consented  to  go  to  Aspinwall, 
and  voluntarily  took  passage  for  that  port ;  but  she  did  not 


816 


AMERICAN  CRIMINAL  REPORTS. 


^n  '$ 


:-'K 


II 


v« 


5! 


consent  to  go  there  to  enter  a  house  of  prostitution.  The  evi- 
dence shows  that  she  would  not  have  consented  to  go  at  nil 
except  for  the  fraud  practiced  upon  her  by  the  defendant.  She 
consented  to  go  for  a  lawful  and  innocent  purpose;  and  the 
defendant,  knowing  tliat  she  was  seeking  honest  employment, 
procured  her  consent  to  leave  the  state  under  pretense  tluit 
such  employment  had  been  secured  for  her,  but  secretly  do- 
signing  that  she  should  become  an  inmate  of  a  brothel.  He 
doubtless  supposed  that  the  prosecutrix,  finding  herself  liolp- 
less  and  friendless  in  a  foreign  hind,  without  means  or  chance 
of  succor,  would  yield  to  his  nefarious  design.  The  statute 
uses,  among  other  words,  the  word  "  inveigle."  There  are 
two  elements  which  must  be  found  in  the  conduct  of  the  de- 
fendant to  constitute  the  olTense:  First,  seizure,  confinement 
or  kidnaping,  which  ordinarily  imply  actual  force  or  an  in- 
veiglement, which  in  the  ordinary  sense  of  the  word  implies 
the  acquiring  of  power  over  another  by  means  of  deceptive  or 
evil  practices,  not  accompanied  by  actual  force;  and  second, 
an  intent  by  the  defendant  to  cause  the  prosecutrix  to  be  sent 
out  of  the  state  against  her  will.  There  was,  as  has  been  said, 
no  actual  force.  There  was  fraud  and  deception,  by  which 
the  will  of  the  prosecutrix  was  subjected  to  that  of  the  de- 
fendant, and  made  subject  to  his  control;  which  satisfies,  we 
think,  the  charge  of  inveiglement  in  the  indictment,  and  es- 
tablishes the  first  of  the  two  elements  mentioned.  The  second 
essential  element  of  the  crime,  viz.,  an  intent  to  cause  the 
prosecutrix  to  be  sent  out  of  the  state  against  her  will,  is  less 
plainly  disclosed  in  the  evidence,  and  raises  a  question  of  more 
difficulty.  It  does  not  appear  that  the  defendant  contem- 
plated using  actual  force  at  any  time.  But  he  did  contemplate 
procuring  the  prosecutrix  to  consent  to  go  out  of  the  state; 
and  this  by  means  of  fraud  and  deception,  without  which  he 
knew  that  she  would  not  consent.  Did  the  defendant,  under 
the  circumstances,  intend  that  the  prosecutrix  should  be  sent 
out  of  the  state  against  her  will,  within  the  meaning  of  the 
statute,  or  is  the  statute  only  applicable  where  the  intent 
to  cause  another  to  leave  the  state  contemplates  physical  coer- 
cion to  that  end?  In  Reg.  v.  IFopkins,  Car.  &  M.,  254,  the 
case  of  an  indictment  for  the  abduction  .of  an  unmarried  girl, 
under  sixteen  j^ears  of  age,  "against  the  will"  of  her  father. 


'&.. 


PEOPLE  V.  \)E  LEON. 


817 


it  appearing  that  the  consent  of  the  parents  was  inducetl  by 
friiiul,  the  indictment  was  sustained,  a!id  Gurnoy,  13.,  said:  "  I 
mention  these  cases  to  show  tliat  tlie  hvw  lias  long  considered 
fraud  and  violence  to  be  the  same."  The  language  is  very 
comprehensive,  and,  if  taken  '"n  its  broadest  meaning,  seems 
scarcely  consistent  with  the  English  cases  which  hold  that 
the  false  pei'sonation  of  the  husband,  whereby  a  married 
womaii  consents  to  intercourse  with  a  stranger,  does  not  con- 
stitute a  ravishment  of  the  wife.  /l>'{/.  v.  Ohtrk,  0  Cox,  Crim. 
Cas.,  230;  /iVv/.  v.  Yoting^  14  Cox,  Crim.  Cas,,  114.  In  Queen 
V.  Dec,  Jebb,  Cr.  Cas.,  (5  Crim.  Law  Mag.,  220  (1S84),  Uie  court 
refused  to  follow  the  English  cases,  and  adopted  the  contrary 
view,  upon  what  seems  to  us  very  satisfactory  grounds.  The 
case  of  Beyer  v.  People,  8G  N.  Y.,  370,  is  quite  apposite  on  the 
question  of  wliat  constitutes  a  taking  '*  against  the  will."  The 
defendant  in  that  case  was  indicted  under  a  section  of  the 
Revised  Statutes  which  declared  that  "  every  person  who  shall 
take  any  woman  unlawfully  against  her  will,  with  intent  to 
compel  her  by  force,  menace  or  duress  to  marry  him,  or  to 
marry  any  other  person,  or  to  be  defiled,"  etc.,  shall,  upon 
conviction,  be  punished,  etc.  It  was  held  that  the  defendant, 
having,  by  the  false  representation  that  he  had  procured  for 
the  prosccutiix  a  situation  as  a  servant  in  a  respectable  fam- 
ily, induced  her  to  go  with  him  to  a  house  of  prostitution, 
with  intent  to  compel  her  to  be  defiled,  was  guilty  under  the 
statute;  and  that  the  inducing  the  prosecutrix  to  accompan}' 
him,  under  the  circumstances,  was  a  taking  "against  her  will," 
within  the  statute.  The  principle  decided  covers  the  present 
case.  Tlie  consent  of  the  prosecutrix  having  been  procured 
by  fraud  was  as  if  no  consent  had  been  given;  and,  the  fraud 
being  a  part  of  the  original  scheme,  the  intent  of  the  defend- 
ant was  to  cause  the  prosecutrix  to  be  sent  out  of  the  state 
against  her  will.  We  think  this  construction  of  section  211  is 
not  inconsistent  with  section  213.  That  relates  to  a  consent 
to  the  very  purpose  of  the  defendant. 

The  examination  of  the  witness  Eonsall  as  to  confessions  of 
the  defendant  was  carried  perhaps  beyond  the  legal  limit. 
Part  of  the  evidence  of  this  witness  was  clearly  competent,  and 
this  and  the  other  "evidence  in  the  case,  none  of  which  was 


m 


318 


AMERICAN  CRIMINAL  REPORTS. 


controverted,  clearly  established  the  crime  charged;  and  the 
error,  if  any,  did  not  prejudice  the  defendant.  The  judgment 
should  be  affirmed. 

(All  concur.) 


ill  i! 


•lit  <1 


J' 


.:/' 


'mmn 


Phillips  v.  State 

(85Tenn.,551.) 

Larceny:  Property  of  different  persons  —  Ownership  —  Former  jeopardy, 

1.  Former  jeopardy— Larceny  prom  same  room— Property  op  dip 

FERENT  PERSONS. — Two  indictoients  were  brought  against  a  defend 
ant, —  one  for  burglariously  entering  a  house  and  committing  a  larceny 
by  taking  and  carrying  away  clothing  the  property  of  one  person 
and  the  other  charging  the  simple  larceny  of  clothing  belonging  to  an 
other  person.    It  appears  that  all  the  articles  were  taken  from  the  same 
room.    Held,  that  an  acquittal  upon  the  first  indictment  was  no  bar  to 
the  trial  under  the  second  indictment  upon  the  ground  of  "  former 
jeopardy,"  there  being  two  separate  and  distinct  larcenies.  ^ 

2.  Indictment— Ownership  op  property  —  Clothing  BELONomo  to  a 

MINOR.—  In  an  indictment  for  the  larceny  of  clothing  from  a  room,  it 
is  proper  to  charge  the  ownership  of  the  clothing  in  a  woman,  though  a 
minor,  she  being  eighteen  years  of  age  and  owning  and  using  the 
clothing  as  her  own. 

Appeal  from  Criminal  Court,  Davidson  County. 
Indictment  for  burglary  and  larceny. 

James  31.  Quarles,  for  appellant. 
Pickle,  attorney -general,  for  the  state. 

Caldwell,  J.  Some  one  entered  the  dwelling-house  of  Mr. 
Moore  by  night,  and  took  therefrom  certain  clothing  belong- 
ing to  Mrs.  Sue  K.  Seawell,  and  certain  other  clothing  belong- 
ing to  her  daughter,  Miss  Roberta  Seawell.  The  goods  were 
taken  on  the  same  occasion,  and  from  the  same  room ;  but 
those  belonging  to  the  mother  were  taken  from  their  place  on 
one  side  of  the  room,  and  those  belonging  to  the  daughter  from 
their  place  on  the  opposite  side  of  the  room,  so  that  the  two 

1  See  note. 


PHILLIPS  V.  STATE. 


319 


parcels  could  not  have  been  taken  into  the  possession  of  the 
same  person  at  precisely  the  same  moment  of  time.  Two  in- 
dictments were  returned  against  Grant  Phillips, —  one  of  thera 
charging  him  with  burglariously  entering  the  house  and  com- 
mitting a  larceny  by  taking  and  carrying  away  "  four  dresses, 
.  .  .  the  property  of  Mrs.  Sue  K.  Seawell;"  the  other 
charging  him  with  the  simple  larceny  of  the  clothing  belong- 
ing to  Miss  Koberta  Seawell.  He  was  arraigned  and  tried 
upon  the  former  of  these  indictments,  and  acquitted;  subse- 
quently he  was  arraigned  upon  the  latter  indictment,  and 
thereto  ^'pleaded  not  guilty,  and  once  in  jeopardy,"  and  on  the 
trial  he  introduced  the  record  in  the  other  case  as  evidence  to 
sustain  his  plea  of  once  in  jeopardy.  This  time  he  was  con- 
victed, and  his  punishment  assessed  at  three  years'  imprison - 
meut  in  the  penitentiar3^     He  has  appealed  in  error. 

Upon  the  plea  of  once  in  jeopardy,  the  trial  judge  said  to 
the  jury  "that  if  Mrs.  Seawell  and  Miss  Koberta  Seawell  were 
the  owners  of  different  lots  of  goods  in  the  same  room,  and 
they  were  feloniously  taken  and  carried  away,  although  it  was 
done  on  the  same  evening,  and  during  one  continuing  trespass, 
it  would  be  two  separate  and  distinct  larcenies,  and  a  former 
trial  of  the  defendant  for  the  larceny  of  Mrs.  Sea  well's  goods 
would  be  no  bar  to  a  trial  under  the  present  indictment  for  the 
larceny  of  Miss  Eoberta  Seawell's  goods."  The  learned  coun- 
sel for  the  prisoner  earnestly  insists  that  this  instruction  is  erro- 
neous ;  that  the  acquittal  upon  the  other  indictment  is  a  complete 
bar  to  the  prosecution  upon  this  one, —  in  other  words,  that  the 
reverse  of  the  instruction  given  is  the  law;  and  that  for  this 
error  a  reversal  should  be  had  and  a  new  trial  granted. 

The  court  was  right  and  counsel  is  in  error.  The  instruc- 
tion quoted  is  correct  as  applicable  to  the  facts  of  this  case. 
The  goods  of  the  two  ladies,  though  in  the  same  room,  were 
in  different  parts  of  that  room,  and  so  far  apart  that  the  thief 
could  not  have  taken  those  belonging  to  the  mother  and  those 
belonging  to  the  daughter  at  the  same  moment  of  time  and  by 
the  same  act.  The  tal  iUg  into  his  possession  of  the  goods  on 
one  side  of  the  room,  and  the  removal  of  them  from  their 
place,  without  the  consent  of  their  owner  and  with  the  intent 
of  appropriating  them  to  his  own  use  and  depriving  the  owner 
thereof,  constituted  a  complete  larceny ;  and  if  the  thief  had 


^w 


ir    m ) 


■f  ; 


^i^% 


m 


320 


AMERICAN  CRIMINAL  REPORTS. 


been  apprehended  in  the  middle  of  the  room  as  he  passed  from 
one  side  to  the  other  with  the  goods  already  taken  in  his  pos- 
session, the  crime  would  have  been  perfect, —  the  trespass  us  to 
the  owner  of  those  particular  goods  and  the  asportatimi  would 
have  been  finished.  The  thief  was  then  guilty  of  the  larceny 
of  the  clotliing  he  had  then  taken  under  his  dominion,  and 
what  he  did  afterwards  was  another  crime.  It  was  the  takinsr 
and  carrying  awa}'  of  the  goods  of  another  person  in  a  subse- 
quent moment  of  time,  and  by  different  movements  of  his 
hands  and  body,  with  the  necessary  felonious  intent.  Tlie  tak- 
ing of  this  other  person's  goods  was  without  her  consent,  and 
was  therefore  a  f/rspass  against  her;  and  all  the  goods  were 
actually  carried  entirely  off  the  premises  and  dropped  some  dis- 
tance away.  The  taking  of  the  goods  of  the  motlicr  was  a  (ri?s- 
pass  against  her  and  not  against /«?;•  daughter i  and  the  taking 
of  the  goods  of  tlie  daughter  was  a  trespass  against  her  and 
not  against  her  mother. 

Then,  were  tliere  not  necessarily  two  trespasses,  —  the  one 
as  to  the  mother  and  the  other  as  to  the  daughter?  Most 
certainly  so;  and  the  one  was  completed  before  tlie  otiiei' 
was  commenced.  Then,  with  reference  to  the  asportation,  tlio 
goods  first  taken  into  the  dominion  and  possession  of  the  thief 
were  by  him  carried  across  the  room  to  the  place  of  those  b.-- 
longing  to  the  other  person,  or  those  last  taken  were  cari-ied 
to  the  place  where  the  thief  deposited  those  first  taken  for  the 
time  being.  In  either  event  the  carrying  away  was  comph;t(! 
in  legal  contemplation;  there  was  an  asportation  of  each  lot  of 
goods.  Neither  of  the  ladies  had  the  ]iossession  of  the  goods 
of  the  other,  or  any  property  rights  tlmrein;  hence  the  tres- 
pass and  (ixj)ortatiiyn  as  to  the  one  was  no  kind  of  legal  offense 
,  against  the  other.  The  v)rong  to  one  of  them  was  no  7orong  to 
the  other,'  and  if  the  wrong  as  to  each  was  not  a  complete 
crime  within  itself  there  was  no  crime  at  all,  because  two  acts 
involving  the  distinct  property  and  rights  of  diU'erent  indi- 
viduals cannot  bo  coupled  in  order  to  constitute  one  offense 
against  the  law.  The  trespass,  as  against  Mr.  ]\Iooi'e,  the  owner 
of  the  house  invaded,  was  continuous  so  long  as  the  thief  re- 
mained upon  his  premises,  his  presence  there  being  without  the 
consent  of  such  owner;  but  the  trespasses  agiiinst  the  ladies 
were  entirely  different  things.     The  offenses  against  them 


PHILLIPS  V.  STATE. 


821 


would  have  been  the  same  if  the  thief  had  been  rightfully  upon 
tlie  premises. 

This  court,  speaking  through  Judge  Turney,  in  Morton  v. 
State,  %'A\([:  "There  are  two  counts.  T\\q  first  is  for  stealing 
the  property  and  money  of  Sam  O'Brien,  and  also  for  stealing 
the  property  and  money  of  Thomas  Corbitt;  the  second  is  for 
receiving  tlie  property  and  money  of  Sam  O'Brien,  and  for  re- 
ceiving the  property  and  money  of  Thomas  Corbitt,  knowing 
thcni  to  have  been  stolen.  There  was  conviction  and  motion 
in  arrest  of  judgment.  The  judgment  should  have  been  ar- 
rested. Each  count  avers  two  separate  and  distinct  offenses. 
Every  larceny  includes  a  trespass  to  the  person  or  property  of  the 
owner  of  the  thing  stolen ;  a  larceny  of  the  property  of  O'Brien 
was  no  trespass  to  the  person  or  property  of  Corbitt,  and  vice 
versa."  1  Lea,  498.  The  facts  of  that  case  are  that  the  defend- 
ant, Morton,  and  O'Brien  and  Corbitt  were  all  sleeping  in 
the  same  room  one  night.  The  next  morning,  when  O'Brien 
and  Corbitt  arose,  each  discovered  that  hismone}^  pocket-knife 
and  perhaps  some  otlier  property,  had  been  abstracted  from 
the  pockets  of  his  clothes  during  the  night.  Morton,  as  well 
as  this  pro[)erty  of  O'Brien  and  of  Corbitt,  had  disappeared 
from  the  room  during  the  night.  lie  was  supi)osed  to  be  tlie 
thief,  and  was  indicted  in  the  manner  and  with  the  result  stated 
in  the  quotation  we  have  made  from  the  opinion  in  the  case. 
Thougli  it  was  not  there  decided  that  an  acquittal  upon  a  dis- 
tinct indictment  for  the  larceny  of  O'Brien's  goods  would  not 
have  been  a  bar  to  a  prosecution  of  the  same  defendant  upon 
an  indictment  for  taking  the  goods  of  Corbitt,  at  the  same 
time  and  from  the  same  room,  it  was  there  decided  upon  facts 
very  similar  to  those  before  us  that  two  distinct  larcenies  were 
charged,  and  that  the  trespass  against  O'Brien  was  no  trespass 
against  Corbitt,  and  vice  versa. 

There  is  no  other  case  in  Tennessee  so  nearly  applicable  in 
its  principles  to  the  case  at  bar.  BelPs  Case,  4  Baxt.,  426,  has 
no  api)lication  whatever.  The  question  there  was  whether  the 
taking  of  certain  vegetables  was  a  larceny  or  a  mere  trespass; 
that  is,  whether  the  severance  and  usportation  were  one  contin- 
uous act  or  two  separate  acts.  If  the  former,  then  the  offense 
was  only  a  trespass  against  the  owner  of  the  realty;  if  the  lat- 
ter, it  was  larceny,  under  a  familiar  rule  of  the  common  law. 
Vol.  VII -81 


322 


AMERICAN  CRIMINAL  REPORTS. 


;J4.:- 


In  Ft<l<ller''s  Case,  7  Humph.,  509,  a  former  conviction  for 
running  a  horse-race  was  held  to  be  a  bar  to  an  indictment 
against  the  same  person  for  "ii3^^/?»j7"  on  the  same  race;  but 
this  was  expressly  and  alone  upon  the  ground  that  the  runidnri 
of  the  race  was  "  a  necessary  ingredient  of  the  offense  "  of  let- 
ting on  the  race. 

The  same  principle  was  applied  in  the  Wilcox  Case,  6  Lea, 
571.  There  the  defendants  had  been  convicted  of  robbery  from 
the  person  of  the  prosecutor,  and  that  conviction  was  success- 
fully pleaded  in  bar  of  a  prosecution  for  an  assault  at  the  same 
time  with  mtent  to  commit  murder  upon  the  prosecutor.  This 
was  right,  because  the  violence  used  in  tiie  commission  of  the 
robberv  was  the  same  offense  or  a  necessarv  ingredient  in  tiie 
other  offense  charged.  So  ever}'  battery  includes  an  assault; 
and  a  conviction  for  the  assault  is  a  bar  to  an  indictment  for 
the  battery  bpcause  it  cannot  be  separated  from  the  assault. 
•  State  v.  Chaffin,  2  Swan,  49i. 

But  tliese  cases  are  not  in  point  hero.  Tiie  taking  of  Mrs. 
Seawell's  goods  was  no  part  or  ingredient  Oi  the  taking  of  her 
daughter's  goods,  nor  was  the  one  larceny  included  in  the 
other  in  any  sense. 

In  Folder  v.  State,  3  Ileisk.,  154,  this  court  held  that  an  in- 
dictment for  an  assault  upon  three  persons  was  good,  upon  the 
ground  that  the  offense  against  each  of  them  might  have  been 
committed  "by  one  and  the  same  act." 

Citing  this  case  and  Womack  v.  State,  7  Cold.,  508,  Judge 
Cooper  says,  in  Kannon  v.  State,  10  Lea,  31)0,  that  "an  indict- 
ment against  the  defendant  for  the  murder  of  two  persons 
would  be  good  upon  its  face,  for  the  murder  may  be  committed 
m  the  same  degree,  Jy  one  and  the  same  act;"  the  controlling 
idea  in  each  of  the  cases  being  that  the  whole  offense  charged 
was  committed  by  a  single  act  of  the  accused.  In  the  opinion 
of  Judge  Andrews  in  the  Womach  Case,  he  says:  "Two  acts 
cannot  constitute  a  single  offense  of  murder."  7  Cold.,  513. 
No  more  can  two  acts  — the  taking  of  one  person's  goods  in 
one  part  of  a  room,  and  then  of  another  person's  goods  in  an- 
other part  of  the  same  room,  on  the  same  occasion  —  consti- 
tute a  single  offense  of  larceny. 

In  the  Williams  Case,  10  Humph.,  101,  it  was  held  that  the 
stealing,  at  the  same  time  and  place,  of  a  horse,*saddle,  blanket, 


PHILLIPS  V.  STATE. 


323 


for 
lent 
but 


bridle  and  martingale  was  but  a  single  offense;  and  likewise, 
in  Kellt/  v.  State,  7  Baxt.,  323,  this  court  said  that  the  "steal 
injr  of  a  mare  and  a  bridle"  was  only  one  crime.     But  the 
several  pieces  of  property  in  each  of  those  cases  were  charged 
to  have  belonged  to  one  person. 

Such  are  the  Tennessee  cases  supposed  to  reflect,  in  some 
degree,  upon  the  question  under  consideration;  but  none  of 
tliem  are  decisive  of  it,  unless  such  be  the  result  of  the  holding 
in  the  Morton  Case. 

Next  we  notice  a  few  decisions  in  other  states  which  are  out 
of  harmony  with  each  other,  and  some  of  which  are  in  conflict 
with  the  views  expressed  in  the  first  part  of  this  opinion. 

In  South  Carolina  the  defendant  was  indicted  in  three  cases 
for  taking  the  cotton  of  three  persons  at  the  samo  time.  It 
was  held  that  a  conviction  in  one  case  was  no  bar  to  a  convic- 
tion in  the  other  two,  the  court  being  of  the  opinion  that  the 
larcen}'  of  the  different  parcels  of  cotton  constituted  three  dis- 
tinct offenses.     State  v.  Thurston,  2  AIc>[ul.,  382. 

The  supreme  court  of  ALassacliusetts  went  still  further  in 
Com.  V.  Andrews,  2  JVLass.,  409.  Andrews  had  received  stolen 
goods  belonging  to  A.  and  B.,  from  the  same  person,  at  the 
same  time,  and  in  tiik  same  packaok.  He  was  convicted  upon 
an  indictment  for  receiving  the  goods  of  B.,  and  pleaded  that 
conviction  m  bar  to  an  indictment  for  receiving  the  goods  of 
A.  The  plea  was  adjudged  to  be  insulKcient,  upon  the  ground 
that  there  were  two  olfenses. 

In  Ohio  it  was  held  that  the  larceny  of  goods  of  two  differ- 
ent persons  at  the  same  time  was  one  transaction,  and  there- 
fore but  one  offense.  Slate  v.  Hennessey,  23  Ohio  St.,  339  (13 
Amer.  Eep.,  253). 

Wilson  was  indicted  and  convicted  for  stealing  a  horse. 
Subsequently  he  was  put  upon  trial  foi*  stealing  other  property 
belonging  to  a  different  person.  Plea  of  former  conviction 
was  sustained,  it  appearing  that  tlie  act  in  each  case  was  the 
same;  the  goods  charged  in  the  second  in<lictment  to  have 
been  stolen  being  upon  the  horse  when  he  was  taken.  Wilson 
V.  State,  45  Tex.,  70  (23  Amer.  Rep.,  002). 

In  section  931  of  the  ninth  edition  of  his  work  on  Criminal 
Law,  Wharton  mentions  several  instances  in  which  the  taking 
of  different  things  by  one  continuous  act  has  been  held  to  be  a 


m 


824 


AMERICAN  CRIMINAL  REPORTS. 


Sr- 


Hk7: 


Si! J  '  r 


l'^     :i 


•<  •!   '( 


'        >!, 


i^n!' 


«in(7^^  larceny;  and  in  doing  so  he  refers  to  some  of  the  cnses 
cited  in  notes  to  the  case  of  The  Kuuj  v.  Ellis,  2  Heard,  Load. 

Crim.  Cas,, .     At  the  conclusion  of  this  section,  treatin^r  of 

the  singleness  of  the  transaction,  the  author  says:  "Pmt  if 
broken  up,  as  is  stated,  by  extrinsic  action,  then  separate  in- 
dictments  are  necessary.  IVus,  'perhaps,  occurs  lohen  articles 
of  different  oioners  are  tal'en  hj  one  continuous  actP 

It  was  proper  to  charge  the  ownership  of  the  property  in 
Miss  Eoberta  Seawall,  though  a  minor,  she  being  eighteen 
years  of  age,  and  owning  and  using  the  clothing  as  her  own. 
i  AVhart.  Crim.  Law  (9th  ed.),  §  947. 

The  judgment  must  be  affirmed,  with  costs. 

Snodorass,  J.,  dissents. 

Note.— See  StaU  v.  Colgate,  5  Am.  Cr.  R.,  71;  also  Com.  v.  Holmes,  id, 
848,  and  note. 


Commonwealth  v.  Eichelberoek. 

(119  Penn.,  253.) 

Larceny  :  By  trick  or  device, 

1.  Larceny  by  artifice. —  If  by  means  of  any  trick  cr  artifice  the  owner 

of  property  is  induced  to  part  with  the  possession  only,  still  meaninfj 
to  retain  the  right  of  property,  the  taking  by  such  means  will  amount 
to  larceny,  provided  it  be  done  aniino  furandi. 

2.  Fraudulent  substitution  of  smaller  note. —  Defendant,  being  in- 

debted to  a  bank  for  $1,000,  paid  the  cashier  the  discount  thereon  for 
another  ninety  days,  and  in  exchange  for  the  original  note  gave  hiui 
one  for  $16,  with  the  deliberate  intent  and  design  to  defraud  the  bank, 
the  cashier  believing  he  was  giving  him  a  note  for  the  $1,600.  Held, 
that  defendant  was  guilty  of  larceny. 

Error  to  Court  of  Quarter  Sessions,  Lehigh  County;  Edwin 
Albright,  president  judge. 

S.  K.  Eichelberger  was  indicted  for  larceny.  The  jury  re- 
turned a  special  verdict,  and  the  court  entered  judgment  for 
defendant.  The  facts  are  set  out  in  the  opinioa.  The  state 
brings  error. 


■•.  i'  I : 


COMMONWEALTH  v.  EICHELBERGER. 


325 


M.  C.  L.  Kline,  district  attorney.  Hard  <fi  Cashman,  and 
E.  E.  Wrights  Sons,  for  the  state. 

Stewart  tfc  Wilds,  Edward  Harvey  and  Ilenninger  <j&  De- 
tvalt,  for  defendant. 


Paxson,  J.  The  defendant  was  indicted  for  larceny.  The 
jury  found  a  special  verdict,  from  which  we  learn  that  the 
Coopersburg  Savings  Bank  held  his  promissory  note,  indorsed 
by  John  Eichelberger,  for  the  sura  of  $1,000;  that  on  the  1st 
day  of  July,  18SC,  he  called  at  said  bank  to  renew  the  note; 
that  he  paid  the  discount  thereon  for  another  period  of  ninety 
days,  viz.,  $25.07;  that  he  obtained  his  said  note  of  $1,(500  by 
giving  the  cashier  a  new  note  for  $16,  with  the  same  indorser; 
that  when  the  cashier  received  the  note  for  $10  he  believed  he 
was  getting  a  note  for  $1,600,  and  would  not  otherwise  have 
surrendered  the  old  note;  that  "  the  defendant  made  and  pre- 
sented the  note  for  $10  with  the  deliberate  design  and  intention 
to  defraud  said  bank  by  obtaining  from  it  said  note  for  $1,600 
by  giving  in  its  place  one  for  $16  only,  and  with  the  design 
and  intention  that  the  oificers  of  the  bank  should  overlook  the 
fact  that  the  note  offered  was  for  $16  only,  and  that  by  reason 
of  such  oversight  and  mistake  should  give  up  the  note  for 
$1,000."  The  special  verdict  further  sets  forth  that  "  if  the 
facts  stated,  and  the  acts  of  the  defendant  above  set  forth,  are 
sullicient  in  the  opinion  of  the  court  to  warrant  a  conviction 
of  the  defendant  of  the  crime  of  larceny,  then  the  jury  do  say 
that  he  (the  defendant)  is  guilty  of  larceny  in  manner  and 
form  as  he  stands  indicted.  If  not  sufficient,  then  the  jury 
find  the  defendant  not  guilty."  The  learned  court  below  en- 
tered a  judgment  for  the  defendant  upon  the  facts  as  found 
bv  the  jurv. 

It  is  difficult  to  imagine  a  more  dishonest  fraud  than  the  one 
above  stated.  We  must  be  careful,  however,  that  in  our  just 
indignation  of  so  palpable  a  trick  we  are  not  carried  beyond 
the  line  of  recognized  law.  It  is  for  the  legislature  to  say 
what  olfenses  shall  constitute  larceny.  Our  duty  ends  with 
declaring  whether  the  case  comes  within  the  act  of  assembly. 

Just  here  it  is  proper  to  say  that  in  the  argument  at  bar  the 
right  was  questioned  of  taking  a  special  verdict  in  criminal 
cases.    It  is  rarelv  done,  because  a  case  seldom  arises  in  which 


if 


826 


AMERICAN  CRIMINAL  REPORTS. 


J ,''  K 


.t"'- 


H'iK 


>i::s 


such  a  course  is  useful  or  necessary.  In  the  case  in  hand  we 
think  the  learned  judge  below  acted  wisely  in  requestin;;*  the 
jury  to  find  tlio  facts  specially.  They  were  altogether  peculiar, 
if  not  without  precedent,  and  the  case  itself  lies  upon  tlie  bor- 
der. The  right  of  the  court  to  take  a  special  verdict  in  crim- 
inal cases  was  decided  in  Com.  v.  Chuthams,  50  Pa.  St.,  181, 
and  the  same  rule  has  been  laid  down  in  at  least  two  recent 
cases  not  yet  reported. 

It  was  held  by  the  court  below  that  the  case  was  ruled  by 
Lcxoer  v.  Com.,  15  Serg.  &  li.,  03.  It  was  in  the  application  of 
that  case  to  the  facts  of  the  present  one  that  we  think  the 
learned  and  able  judge  inadvertently  fell  into  error.  Lewer 
V.  Com.  was  well  decided,  and  wo  adhere  to  every  word  there 
said.  That  was  a  case,  however,  of  a  sale  and  delivery  of  cer- 
tain merchandise  to  one  M.  D.  Lewer,  who  falsely  represented 
himself  as  the  agent  of  his  brother.  It  was  not  pretended  that 
the  owners  of  the  merchandise  did  not  intend  to  part  with 
both  the  title  to  and  the  property  therein.  They  were  simply 
overreached  by  means  of  the  above  and  other  false  statements, 
and  sold  and  delivered  their  goods  to  a  knave.  It  was  a  case 
of  cheating  by  false  pretenses, —  nothing  more.  The  pur- 
chaser obtained  a  credit  by  means  of  false  representations. 
The  ingenuity  of  the  learned  counsel  has  furnished  us  with  a 
large  array  of  authorities  on  both  sides  of  this  interesting 
question,  but  it  would  occupy  too  much  space  to  refer  to  them 
in  detail.  I  had  occasion  several  years  ago,  when  occupying  a 
seat  on  the  bench  of  the  common  pleas  of  Philadelphia,  to  ex- 
amine the  question  of  constructive  larceny  with  considerable 
care  in  the  case  of  Com.  v.  Yerkes,  29  Leg.  Int.,  GO,  and  to 
which  I  take  the  liberty  to  refer  as  the  only  Pennsylvania 
case  which  is  upon  all-fours  with  this.  It  was  there  said: 
"The  distinction  between  larceny  and  false  pretenses  is  a  very 
nice  one  in  many  instances.  In  some  o''  the  old  English  cases 
the  diiference  is  more  artificial  than  real,  and  rests  purely 
upon  technical  grounds.  Much  of  this  nicety  is  doubtless 
owing  to  the  fact  that  at  the  time  many  of  the  cases  were 
decided  larceny  was  a  capital  felony  in  England,  and  the 
judges  naturally  loaned  to  a  merciful  interpretation  of  the  law 
out  of  a  tender  regard  for  human  life."  The  distinction  be- 
tween larceny  and  cheating  by  false  pretenses  is  well  stated  in 


COMMONWEALTH  v.  EICHELBERGER. 


327 


Euss.  Crimes,  otii  Am.  ed.,  28.  After  an  exhaustive  review  of 
the  cases  the  learned  author  says:  "The  correct  distinction  in 
cases  of  this  kind  seeins  to  be  that  if,  by  means  of  any  tricic  or 
artiiice,  the  owner  of  property  is  induced  to  part  witli  the  pos- 
session only,  siiU  moaning  to  retain  the  rij^ht  of  pi-opL'rty,  the 
taking  by  such  means  will  amount  to  larceny;  but  if  the  owner 
part  with  not  only  the  possession  of  the  goods,  but  the  right 
of  property  in  them  also,  the  offense  of  the  party  obtaining 
them  will  not  be  larceny,  but  the  offense  of  obtaining  goods 
by  false  pretenses."  I  could  not  add  to  this  were  I  to  write  a 
volume.  It  is  the  principle  running  through  all  the  cases,  in- 
cluding Lewer  v.  Com.  The  rule  itself  is  distinct  and  clearly 
cut.  The  difficulty  consists  in  its  application  to  the  facts  of 
each  particular  case,  varied  as  they  are  by  the  ingenuity  of  the 
l^articnliir  rogue  who  makes  the  facts.  It  remains  to  apply 
the  rule  to  this  case.  The  defendant  was  indicted  under  sec- 
tion 101  of  the  crimes  act  of  31st  March,  18G0,  for  the  larceny 
of  a  promissory  note  of  the  value  of  §1,000,  the  pro])erty  of 
the  Coopersburg  Savings  Dank,  and  the  jury  have  found  that 
it  was  obtained  nnhno  farandi.  The  bank  parted  with  the 
possession.  If  it  also  intended  to  part  with  its  property  repre- 
sented by  the  note  we  have  no  hesitation  in  saying  the  offense 
of  the  defendant  was  not  larceny,  whatever  else  it  may  have 
been.  In  considering  tiiis  question  regard  must  be  had  to  the 
nature  of  the  property  alleged  to  have  been  stolen.  It  was  a 
promissory  note,  as  before  stated,  of  the  value  of  $1,600.  AVhat 
gave  it  that  value?  Certainly  not  the  paper  upon  which  it  was 
■written,  for  tliat  was  of  so  inconsiderable  value  as  not  to  be 
the  subiect  of  larcenv.  It  was  clear  that  it  was  valuable  onlv 
in  so  far  as  it  was  a  representative  of  money, —  as  the  evi- 
dence of  a  debt  which  the  bank  held  against  the  defendant. 
The  bank  did  not  intend  to  part  with  its  property  in  this  note 
considered  as  an  evidence  of  debt.  The  note  was  not  the 
debt;  it  was  the  more  evidence  of  it.  That  it  did  not  intend 
to  part  with  any  right  of  property'  is  manifest  from  the  fact 
that  the  cashier  thought  he  was  receiving  in  exchange  for  the 
note  parted  with  a  similar  evidence  of  such  debt,  of  equal 
amount  and  of  equal  value.  It  would  be  the  baldest  techni- 
cality,—  a  mere  sticking  in  the  bark, —  to  hold  that  the  bank 
intended  to  part  with  any  right  of  property  by  a  mere  deliv- 


ua 


is 


828 


AMERICAN  CRIMINAL  REPORTS, 


m 


ii  I 


■  4 


i'  a 


i» 


ery  to  the  defendant  of  a  piece  of  paper  which,  gua  paper,  was 
of  no  value.  It  did  not  intend  to  deliver  the  evidence  of  its 
debt  to  the  defendant,  because  it  supposed  tiuit  it  was  getting- 
another  of  equal  value,  and  would  have  received  it  but  for  the 
trick  and  fraud  of  the  defendant.  In  the  absence  of  any  de- 
cision of  this  court  fully  covering  the  facts  of  the  case,  it  was 
natural  and  proper  for  the  learned  judge  below  to  give  tiio 
defendant  the  benefit  of  the  doubt  which  he  evidently  enter- 
tained. "Were  we  in  doubt  we  would  do  likewise;  but  we  arc 
all  of  opinion  that  upon  the  facts  found  by  the  jury  the  of- 
fense is  larceny. 

The  judgment  is  reversed,  and  it  is  ordered  that  the  record 
be  remitted,  with  instructions  to  the  court  below  to  enter 
judgment  for  the  commonwealth,  and  to  proceed  to  sentence 
the  defendant  according  to  law. 


■^ 


# 


fW. 


■  U-T  '',■-■■■"'■■ 

"  '   Ml:; . 


m 


Haley  v.  State. 

(49  Ark.,  147.) 

Larceny  included  in  robbery  under  statute  —  Posscssjoji  obtained  by 

fraud  or  threats. 

1.  Robbery  —  Indictment  —  Larceny.  —  At  common  law  one  indicted 

for  robbery  could  not  be  convicted  of  larceny.  Tlie  statute  of  Arkan- 
sas provides  that  "upon  an  indictment  for  an  offense  consisting  of  dif- 
ferent decrees,  the  defendant  may  be  found  guilty  of  any  degree  not 
higher  than  that  charged  in  the  indictment,  and  may  l)e  found  guilty 
of  any  offense  included  in  tliat  charged  in  tlie  indictment.*'  Held,  that 
tlie  crime  of  robbery  being  an  aggravated  or  compound  larceny,  a 
conviction  of  grand  larceny  upon  an  indictment  for  robbery  is  proper 
if  tiio  jury  is  in  doubt  whicii  offense  defendant  committed. 

2.  Possession  obtained  by  fk\ud— Use  op  fraud  —  False  pretenses. 

An  instruction  that  if  the  property  taken  was  obtained  by  stealth 
or  fraud,  with  intent  to  steal  the  same,  the  offense  of  larceny  was 
made  out,  is  erroneous.  Where  the  owner  parts  with  the  property  by 
consent,  there  is  no  trespass,  and  the  offense  is  that  of  cheating  at 
common  law,  or  tiie  statutory  offense  of  false  pretenses. 
2.  Threat  —  Parting  with  possession  to  avoid  puiilic  exposure.— 
Upon  a  trial  for  robbery  resulting  in  a  conviction  of  grand  larceny 
there  was  evidence  showing  that  the  property  obtained  was  volun- 
tarily given  by  the  prosecuting  witness  to  shield  himself  from  a 
threatened  exposure  of  crime  by  defendants.    Held,  that  defendants 


HALEY  V.  STATE. 


829 


■  ns 
its 

O 

lie- 
■as 

10 

er- 

Ll'O 

.f- 


wcre  entitlcfl  to  an  unqualified  instruction  that,  if  tlie  jury  should 
find  tlmt  the  prosecuting  witness  had  parted  with  tlie  property  to 
tiliield  liinisplf  from  prosecution,  or  to  avoid  a  public  charge  of  crime, 
tlie  olTenso  of  larceny  was  not  committed,  and  tliat  it  was  error  for  tlie 
court  to  modify  a  requested  instruction  to  that  effect  by  adding  the 
idea  of  fraud,  i 


Indictment  for 


Appeal  from  Circuit  Court,  Saline  County, 
robbery. 

John  3[cLnre,  for  appellants. 

Ban  W,  Jones,  attorney-general,  for  appellee 


Smith,  J.  The  indictment  charged  that  the  defendants 
"sundry  bills  of  United  States  currency  of  the  aggregate 
value  of  five  hundred  dollars,"  etc.,  "  of  the  money  and  per- 
sonal property  of  one  Perry  Huff,  feloniously,  violently,  by 
force  and  intimidation,  from  the  person  and  against  the  will 
of  him,  the  said  Perry  Huff,  then  and  there  feloniously  and 
violently  did  steal,  take  and  carry  away,  against  the  peace," 
etc.  The  jury  found  the  defendants  guilty  of  grand  larceny. 
]\Iotions  for  a  new  trial  and  in  arrest  of  judgment  were  re- 
fused; and  judgment  of  confinement  in  the  penitentiary  was 
pronounced  against  thom. 

The  ground  of  the  motion  in  arrest  of  judgment  is  "  because 
the  lacts  stated  in  the  indictment  do  not  constitute  the  crime 
of  grand  larceny."  At  common  law  one  indicted  for  robbery 
could  not  be  convicted  of  larceny,  as  appears  from  liex  v. 
Francis,  2  Strange,  1014,  which,  after  having  been  twice 
argued  in  the  king's  bench,  Avas  finally  heard  before  all  the 
judges  of  England.  In  that  case  the  defendants  were  indicted 
for  robbery.  The  jury  returned  a  special  verdict,  and  the 
(juestion  arose  thereon  whether  the  facts  found  constituted  rob- 
bery. Counsel  for  the  defendants  moved  for  a  discharge  of 
the  prisoners,  and  the  court  said:  "  We  all  think  this  is  grand 
larceny,  and  therefore  cannot  discharge  these  persons,  hut  as 
we  cannot  give  jiidcnnent  for  a  larceny,  there  must  he  a  new  in- 
dictment.'''*  In  the  report  of  the  same  case  in  2  Com.,  478,  it 
was  held  that  the  prisonei's  ought  not  to  be  discharged  out  of 
custody,  but  remanded ;  "  for,  though  no  robbery  is  found  by 
the  verdict,  yet  it  appears  they  are  guilty  of  grand  larceny, 

*  Sec  note. 


U    ':) 


330 


AMERICAN  CRIMINAL  RErORTS. 


;'i*^ 


'0 


M 


for  which  no  jud^Miient  can  be  given  on  this  indii'/ment,  for 
this  dill'ei's  from  bur<;lary  and  other  cases  where  the  prisoner 
may  bo  acquitted  of  tiio  burglary  and  found  gniltj  of  tlie 
felony;  but  here  the  otfenso  is  laid  to  lie  a  i-obbery  in  takin<;' 
u  jici'nona.  The  court  cannot  givo  judgment  against  tliem  on 
tlilm  hiiUcfi/u'itt,  but  must  discharge  them  as  to  it,  and  remand 
them  in  order  to  be  tried  njjon  a  now  Indictiuchtfor  the  yrand 
la  roe  III/.'''' 

Section  2288  of  ISFansfield's  Digest  declares  that,  "  upon  an 
indictment  for  an  olFenso  consisting  of  dilFerent  degrees,  the 
defendant  nia}'  be  found  guilty  of  any  degree  not  iiigher  than 
that  charged  in  the  indictment,  and  may  be  found  guilty  of 
any  oll'enso  included  in  that  charge  in  the  indictment." 

'*  Sec.  2289.  Tiio  offenses  named  in  each  of  the  subdivisions 
of  this  section  shall  be  deemed  degrees  of  tlio  same  olTense  in 
the  meaning  of  the  preceding  section.  Fird,  all  otfenses  of 
homicide;  second,  ail  injuries  lo  the  person  by  maiming, 
■wounding,  beating  and  assaulting,  whether  maliciously  or 
from  sudden  passion,  and  whether  attended  or  not  with  the 
intention  to  kill;  third,  all  olfenses  of  larceny ; /r;'//*M,  arson 
and  house-burning;  ^yW,  burglary  and  house-breaking;  sixth, 
an  olTense,  and  an  attempt  to  commit  the  offense,"  etc. 

The  question,  tlien,  resolves  itself  to  this:  AVhether  robbery 
is  a  degree  or  species  of  larceny,  or  incltides  it.  h\  Clar;/  v. 
(iS'^«/t%  yy  Ark.,  5(50,  this  court  said:  "  Perhaps,  on  a  trini  ''  • 
robbery,  if  the  state  fails  to  prove  that  the  goods  wen  n 

from  the  person  or  party  charged  to  have  been  injui  by 
putting  him  in  fear,  or  by  intimidation  or  violence,  nx\(\j)i<>r<'s 
that  the  goods  were  taken  from  his  person  fuHivelij,  tlie  ac- 
cused might  be  convicted  of  larceny."  And  in  Davis  v.  State, 
45  Ark.,  404,  it  was  declared  that  one  accused  of  murder  might 
be  convicted  of  an  assault  with  intent  to  kdl,  provided  the  in- 
dictment contained  all  the  substantive  allegations  necessary  to 
let  in  proof  of  the  inferior  crime.  If  the  allegations  of  vio- 
lence and  intimidation  be  stricken  out  of  the  present  indict- 
ment, a  charge  of  larceny  will  still  be  left.  Now,  robbery  is  a 
comptnmd  or  aggravated  larceny.  It  is  a  stealing  from  a  per- 
son, with  the  element  of  assault  or  putting  in  fear  superadded. 
Hence  it  is  that  an  acquittal  or  conviction  of  either  offense 
bars  a  prosecution  for  the  other.     This  could  only  bo  upon  the 


^ 


HALEY  V.  STATE. 


331 


theory  that  larcon}'  is  included  in  robbery.  Ilonco,  also,  under 
n\i  indictment  for  the  liigher  crime,  the  jury  may  find  the  de- 
fendant guilty  of  the  lower  if  they  entertain  a  reasonable 
doubt  as  to  which  of  the  two  olfenses  he  is  guilty.  1  Bish. 
Crini.  Law  (0th  ed.),  §;  553,  50(],  701,  702,  704,  705,  1054, 1055; 
2  Bish.  Crim.  Law  (Oth  ed.),  g,§  802, 1158;  l*eo/do  v.  McUowan, 
17  Wend.,  3S0;  nicleij  v.  iSlute,  23  Ind.,  21;  People  v.  Jones, 
53  Cal.,  58;  ISlate  v.  Jcnhlns,  3G  Mo.,  372;  State  v.  DavUhon, 
3S  Mo.,  374;  State  v.  Brannon,  55  Mo.,  G3;  State  v.  Painter, 
07  Mo.,  85;  State  v.  Keeland,  2  S.  W.  Kep.,  442. 

The  parties  indicted  for  the  robbery  were  T.  J.  Haley,  his 
wife  and  son.     Perry  Huff,   the  prosecuting  witness,  was  a 
merchant  of  Hot  Springs,  and  a  believer  in  spiritualism.    Mrs. 
Haley  chiimod  to  bo  a  medium  of  communication  with  the 
world  of  spirits,  cognizant  of  past  events  that  had  not  fallen 
under  her  own  observation,  and  able  to  predict  the  future. 
Hulf  had  been  in  the  habit  of  consulting  her  about  his  business 
traJisactions,  and,  having  recently  suffered  some  losses  by  lire, 
was  anxious  to  know  whether  he  was  to  get  his  insurance  in 
full.     Having  invited  her  victim  to  a  sitting  at  10:30  A.  M., 
the  woman  stationed  her  husband  and  step-son  behind  a  cur- 
tain in  the  same  ai)artment,  and,  pretending  to  go  off  into  a 
trance,  she  accused  Huff  of  burning  his  houses  to  defraud  the 
insurance  companies.     About  this  time  the  two  men  walked 
from  behind  the  curtain.     Huff  testilies  that  they  locked  the 
door  of  the  room;  that  the  old  man  Haley  and  his  son  both 
had  pistols;  that  they  exhibited  them  to  him,  and  denuinded 
his  money,  and  told  him  he  must  give  it  up;  that  he  was  in 
fear  of  his  life  and  great  bodily  injury,  and,  under  this  fear,  he 
gave  the  defendants  §500,  and  matle  his  note,  payable  to  Mrs. 
Haley,  for  $1,500  more.    The  three  Haley s  swear  that  Hoff 
confessed  to  Mrs.   Haley,  acting  as  a  spiritual  medium,  the 
burning  of  his  houses  on  two  dilferent  occasions;  that  old  man 
Haley  and  his  son  heard  the  confession;  that,  after  the  con- 
fession was  matle,  they  confronted  Huff;    that  Huff,  being 
aware  they  had  heard  his  confession,  to  keep  them  from  tell- 
ing the  public,  and  especially  Huff's  wife,  finally  agreed,  and 
without  any  suggestion  or  demand  on  their  part,  to  pay  Mrs. 
Haley  §500  in  cash,  and  give  his  note  for  §1,500,  payable  at  a 
short  time,  as  soon  as  he  could  sell  some  property.     Huff  also 


833 


AMERICAN  CRIMINAL  REPORTS. 


swore  that  they  detained  him  in  the  room  for  several  hours,  tlio 
two  men  standing  on  each  side  of  him;  and  that,  after  he  had 
paid  the  money,  they  mesmerized  or  drugged  or  chloroformed 
him,  so  that  he  felt  drowsy  for  three  or  four  days;  and  tluit, 
before  he  had  fully  recovered,  the  defendants  had  loft  town. 
Huff  made  no  comi)laint  to  any  officer,  but  laid  his  case  before 
a  lawyer,  who  advised  !iim  to  bo  quiet  until  the  defendants 
should  return.  In  three  or  four  months  they  came  back  to 
collect  the  note,  when  Iluff  caused  them  to  be  arrested.  Mrs. 
Haley  was  acquitted,  under  the  directions  of  the  court,  on  ac- 
count of  the  presence  and  presumed  coercion  of  her  husband. 

The  defendants  requested  the  court  to  charge  "  that  the  long 
silence  of  Perry  Huff,  from  August  27,  1S85,  to  December  9th 
of  the  same  year,  in  announcing  the  alleged  robbery,  is  a  cir- 
cumstance from  which  the  jury  may  infer,  in  connection  with 
the  evidence,  that  the  said  Huff  was  not  deprived  of  his  money 
through  fear  or  violence."  This  was  properly  refused.  To 
give  it  would  have  been,  under  our  system  of  practice,  an  in- 
vasion of  the  province  of  the  jury.  It  is  not  the  duty  of  the 
presiding  judge  to  point  out  what  inferences  may  or  should  be 
drawn  from  particular  facts  in  proof.  litnulolph  v.  McCain, 
34:  Ark.,  090;  F/j/nn  v.  State,  43  Ark.,  289;  Madin  v.  State,  U 
Ark.,  115;  Polk  v.  State,  45  Ark.,  105;  Stephens  v.  Oppen- 
helvier,  id.,  492. 

The  jury  were  also  told  that  "  if  they  believe,  from  the  evi- 
dence, beyond  a  reasonable  doubt,  that  the  defendants,  or 
either  of  them,  feloniously  took  the  property  from  the  posses- 
sion of  the  said  Perry  Huff,  by  stealth  or  fraud,  with  intent  to 
steal  the  same,  then  the  jury  may  find  the  defendants,  or  either 
of  them  that  so  t,ook  the  money,  guilty  of  larceny."  The  court 
was  further  requested  to  charge  that  if  the  jury  should  find 
Huff  had  parted  with  his  money  to  shield  himself  from  a  pros- 
ecution for  arson,  or  to  avoid  a  public  charge  of  that  char- 
acter, this  would  not  constitute  larceny.  This  |)rayer  the  court 
ir  '  !':iod  by  adding  the  words,  "  unless  it  was  a  contrivance 
resorted  to  by  the  defendants  to  induce  him  by  fraud  to  give 
up  his  money,  and  in  that  way  feloniously  to  steal  the  same." 

In  going  out  of  its  way  to  deal  with  the  qi\estion  of  fraud 
and  fraudulent  devices  the  court  was  treading  upon  dangerous 
ground;  for  some  subtle  distinctions  have  become  firmly  es- 


HALEY  V.  STATE. 


333 


tablished  in  the  law  of  larceny.  Indeed,  the  whole  law  on  this 
subject  is  extremely  technical.  Mr.  Bishop,  in  his  work  on 
Criminal  Law  (vol.  2.  §  808),  says:  "If,  by  fraud,  a  person 
is  induced  to  part  with  his  goods,  meaning  to  relinquish  his 
property  in  tliem,  as  well  as  his  possession,  he  who  thus  obtains 
tiiem  may  be  chargeable  with  a  cheat  at  the  common  law,  or 
under  the  statute  against  false  pretenses,  but  not  with  larceny, 
because,  it  is  assumed,  the  owner  having  actually  consented  to 
part  with  his  ownership,  there  was  no  trespass  in  the  taking." 
In  Loomis  v.  People,  67  N.  Y.,  329,  this  distinction  is  thus 
stated:  "Where,  by  fraud,  conspiracy,  or  artifice,  the  posses- 
sion is  obtained  with  a  felonious  design,  and  title  still  remains 
in  the  owner,  larceny  is  established.  Where  title,  as  well  as 
possession,  is  absolutely  parted  with,  the  crime  is  false  pre- 
tenses." Compare  Whart.  Crim.  Law  (Dth  cd.),  §§  904,  965, 
and  Kellogg  v.  State,  26  Ohio  St.,  15. 

There  was  no  evidence  that  the  prisoners  had  obtained  Huff's 
money  by  any  trick.  They  obtained  it  either  by  exciting  his 
fears  or  through  his  consent.  And  there  being  notliing  in  the 
circumstances  from  which  the  jury  could  infer  that  the  posses- 
sion of  the  money  was  intrusted  to  them  as  bailees,  or  for  a 
temporary  purpose,  the  question  was,  not  Avhether  the  money 
had  been  procured  from  the  owner  by  false  and  fraudulent 
representations,  but  whether  it  had  been  obtained  by  his  free 
consent,  or  extorted  from  his  fears.  If  the  latter  was  the  case 
then  the  larceny  was  complete;  the  apparent  consent  being 
annulled  by  the  fear  which  the  thieves  had  inspired.  2  Bish. 
Crim.  Law,  §  807.  Such,  however,  is  not  the  law  when  goods 
or  money  are  acquired  by  fraudulent  practices.  Consent,  no 
matter  how  fraudulently  obtained,  if  there  be  no  mistake  as  to 
the  taker  or  the  thing  taken,  excludes  the  idea  of  trespass,  and 
consequently  the  idea  of  larceny.  And  no  threats  of  prosecu- 
tion, or  fear  of  loss  of  reputation,  will  nullify  such  consent. 
2  Bish.  Crim.  Law,  §f^  811,  1173;  1  Whart.  Crim.  Law,  §  915; 
Perkins  v.  State,  65  Ind.,  317.  The  defendants  having  given 
evidence  tending  to  prove  that  the  $500  was  voluntarily  paid 
by  Huff  as  hush-money  for  the  preservation  of  his  secret,  and 
in  order  to  prevent  exposure,  they  had  the  right  to  have  the 
jury  instructed  on  this  hypothesis.  And  the  qualification  at- 
tached by  the  court,  in  relation  to  fraud,  was  erroneous  for  two 


334 


AMERICAN  CRIMINAL  REPORTS. 


\ev/' 


reasons :  There  was  no  testimony  upon  which  to  base  it ;  and 
if  there  had  been,  it  is  not  the  law. 

Reversed  and  remanded  with  directions  to  put  the  defend- 
ants upon  trial  for  larceny. 

Note. —  Felonious  intent  —  Instruction. —  Defend.nnt  obtained  goods  un- 
der contract,,  and  with  the  consent  of  the  owner,  but  witli  the  felonious 
intent  to  steal  them.  On  the  trial  for  larceny  the  instruction  of  the  court 
omitted  the  element  of  felonious  intent,  charginf;  that  if  tlie  jury  believed 
that  defendant  intc'uded  to  convert  the  goods  to  his  own  use,  and  did  so 
convert  them,  then  he  was  t?ui'ty  of  larceny.  There  was  no  language  used 
which  was  equi'.alent  to  felonious  intent,  or  which  conveyed  the  idea  of 
Btealing.  ZJe/d  error.  McKinstry  and  Thornton,  JJ.,  dissenting.  People 
V.  Raschke,  7:'  Cal.,  878. 

Special  property  in  defendant. —  Where  possession  of  goods  is  obtained 
under  contract,  and  with  the  consent  of  the  owner,  and  a  special  property 
in  them  passes  to  the  taker,  but  there  is  a  felonious  intent  to  steal  at  the 
time  possession  of  the  goods  is  obtained,  this  is  such  felonious  taking  as 
constitutes  larceny.    Jbid. 

Value  of  projjerty  found  in  defendant's  posnession. —  Defendant,  with 
his  confederates,  feloniously  obtained  goods  amounting  in  value  to  more 
than  the  sum  fixed  for  grand  larceny.  Held,  that  ho  was  guilty  of  gi'and 
lai'ceny,  even  though  the  goods  found  upon  his  premises  did  uot  amount  to 
more  than  that  sum.    Ibid, 


State  v.  Kirkpatrick. 


>&''^ 


(72  Iowa,  500.) 
Larceny  :  Instructions  —  Recent  jwsscssion. 

1.  Possession  op  stolen  goods  — Instructions  — Rrasonaht.e  doubt.— 

Under  an  indictment  for  larceny  the  court  instructed  the  jury  that, 
"  as  the  defendant  admits  that  he  had  the  articles  stolen  in  his  posses- 
sion .  .  .  after  the  crime  was  committed,  you  would  be  justified 
in  finding  him  guilty,  unless  he  has  satisfied  you  that  his  possession  at 
that  time  was  not  obtained  by  stealing  them."  Held,  that  the  charge 
was  erroneous,  as  requiring  the  defense  to  raise  not  only  a  reasonable 
doubt  of  guilt,  but  to  satisfy  the  jury.i 

2.  Sufficiency  of  evidence  —  Review  on   appeal.- The  verdict   of 

guilty  in  t,  criminal  action  will  not  be  set  aside  on  appeal  because  the 
evidence  ia  weak  if  there  is  not  such  lack  of  evidence  as  shows  it  was 
clearly  erroneous. 

>  See  note. 


STATE  V.  KIRKPATRICK. 


335' 


Appeal  from  District  Court,  "Wapello  County. 

The  defendant  was  indicted  for  the  crime  of  larcen}'.  There 
was  a  trial,  which  resulted  in  a  verdict  of  guilty,  and  a  judg- 
ment of  imprisonment  for  two  years  and  six  months.  He  ap- 
peals. 

A.  N.  Yancey  and  IT.  B.  ITendersJioU,  for  appellant. 
A.  J.  Baher,  attorney-general,  for  the  state. 


Adams,  C.  J.  The  defendant  was  charged  with  the  stealing 
of  certain  watches  and  jewelry,  some  of  which  it  is  conceded 
that  he  had  in  his  possession  after  the  theft. 

1.  The  defendant  insists  tliat  the  evidence  is  wholly  insuffi- 
cient to  sustain  the  verdict.  "While,  as  we  read  the  evidence, 
it  does  not  appear  to  us  to  be  strong,  we  cannot  say  that  there 
was  such  lack  of  evidence  as  would  justify  us  in  disturbing  the 
verdict. 

2.  The  defendant  complains  of  an  instruction  given  by  the 
court,  a  part  of  which  is  in  these  words:  "As  the  defendant 
admits  that  he  had  the  watches  and  chains  in  his  possession  on 
the  19th  of  September,  you  would  be  justified  in  finding  him 
guilty,  unless  he  has  satisfied  you  that  his  possession  at  that 
time  was  not  obtained  by  stealing  them."  The  unexplained 
possession  by  the  defendant  of  recently  stolen  property  is  a 
circumstance  against  him,  and  will  justify  a  conviction,  unless 
there  is  such  evidence  of  good  character  or  other  circumstances 
as  to  raise  a  reasonable  doubt  of  gu'lt.  The  case  before  us, 
however,  is  not  one  of  unexplained  possession.  A  somewhat 
explicit  explanation  was  given  by  the  defendant  as  a  witness. 
As  touching  the  explaiuition,  the  jury,  as  we  understand,  was 
instructed,  m  substance,  that  to  render  it  of  any  avail  it  should 
bo  satisfactory.  In  our  opinion  the  jury  should  have  been  in- 
structed to  acquit,  if  the  explanation  was  sufficient  to  mise  a 
reasonable  doubt  of  guilt.  In  State  v.  Emerson^  48  Iowa,  174, 
substantially  the  same  question  arose,  and  the  court  said: 
"  When  a  reasonable  doubt  exists  as  to  the  character  of  the 
recent  possession,  whether  it  be  innocent  or  guilty,  a  reason- 
able doubt  exists  as  to  the  defendant's  guilt.  If  such  doubt 
exists  he  cannot  be  convicted.  Now,  such  doubt  may  arise 
in  the  minds  of  the  jury  upon  less  than  a  preponderance  of 


336 


AMERICAN  CRIMINAL  REPORTS. 


the  evidence.  It  was  therefore  erroneous  to  direct  the  jury 
that  they  could  find  the  defendant  guilty,  unless  defendant,  by 
a  preponderance  of  the  testimony,  reasonably  satisfied  them 
that  his  possession  of  the  cattle  was  innocent."  See,  also, 
State  V.  Henry,  48  Iowa,  403;  State  v.  Jlen-iA;  15)  Me.,  3iXS; 
JIall  V.  State,  8  Ind.,  439;  J/eed  v.  State,  25  Wis.,  421. 

In  our  opinion  the  instruction  cannot  be  sustained,  lleverscd. 

Note.— Possess  JO/1  of  stolen  j)roperly — Presumption. —  The  possession 
of  stolen  property  recently  after  the  theft,  in  the  absence  of  any  explana- 
tion therefor,  ia  prima  facte  evidence  of  guilt.  United  States  v,  Junes,  ;]1 
Fed.  Rep.,  718;  Johnson  v.  Miller,  69  Iowa,  503;  State  v.  liichart,  57  Iowa, 
245.  And  where  a  stolen  horse  was  found  the  day  after  the  theft  in  the 
possession  of  one  charged  witii  its  larceny,  although  his  possession  was  not 
exclusive,  hell,  that  the  jury  might  find  him  guilty  on  proof  of  tliat  fact 
alone.  State  v.  Pennynian,  08  Iowa,  210.  Where  two  joint  defendants 
are  shown  to  have  been  together  when  a  larceny  was  committed,  the  pos- 
session of  the  stolen  goods  by  one  of  them,  shortly  afterwards,  is  criminat- 
ing evidence  against  both.  State  v.  Phelps,  91  Mo.,  478.  But  wliero  the 
only  evidence  against  one  charged  with  burglary  was  the  finding  of  the 
stolen  goods  in  a  trunk  used  jointly  by  himself  and  another,  held,  that  he 
shouUi  have  been  acquitted.  State  v,  Titton,  63  Iowa,  117.  To  warrant  a 
presumption  of  guilt  from  the  circumstance  alone  of  possession,  such  pos- 
session nmst  be  personal,  must  be  recent,  must  be  unexi)lained,  and  must 
involve  a  distinct  and  conscious  assertion  of  property,    liubinson  v.  State, 

22  Tex.  App.,  690.  On  the  other  hand,  it  is  held  that  no  legal  presump- 
tion of  guilt  arises  from  the  recent  possession  of  stolen  property,  but  the 
fact  of  possession  is  merely  a  circumstance  to  be  taken  into  consideration 
by  the  jury  in  arriving  at  a  verdict.  State  v.  Hale,  12  Ore.,  5553;  Ingalls 
V.  State,  48  Wis.,  467;  Peojile  v.  Fagin,  66  Gal.,  534;  Iloge  v.  People,  117 
111.,  35. 

If  one  found  in  possession  of  stolen  property  gives  a  reasonable  and  satis- 
factory explanation  of  his  possession  when  his  right  is  first  called  in  ques- 
tion, it  devolves  upon  the  state  to  show  tiie  falsity  of  such  explanation, 
Sehultz  V.  State,  22  Tex.  App.,  16;  Vaughan  v.  State,  21  Tex.  App.,  573; 
Brothers  v.  State,  23  Tex.  App  ,  447;  Clark  v.  State,  23  Tex.  App.,  613. 

The  presumption  arising  from  tiie  unexplained  possession  of  stolen  i)rop- 
erty  is  not  conclusive.  State  v.  SueW,  46  Wis.,  534;  State  v.  Jordan,  Q9 
Iowa,  506.  It  is  rebuttable  by  evidencje  which  creates  a  reasonable  doubt 
whetlier  such  possession  is  not  an  honest  one.  3tatc  v,  Hopkins,  65  Iowa, 
240;  State  v.  liichart,  57  Iowa,  245;  State  v.  I'eterson,  67  Iowa,  504.  But 
proof  of  previous  good  character  is  not  sufficient  to  rebut  such  presump- 
tion, where  the  defendant  does  not  admit  the  possession,  and  the  proof  is 
introduced  for  a  different  purpose.  Wagner  v.  State,  107  Ind.,  71.  Where 
it  is  not  clear  that  the  possession  is  recent,  the  jury  should  be  explicitly  in- 
Btructed  that  no  presumption  of  guilt  is  to  be  indulged  in.    Curlin  v.  State, 

23  Tex.  App.,  681. 

When  one  is  found  in  possession  of  property  which  is  shown  to  have 


STATE  V.  KIRKPATRICK. 


33< 


ILiry 

:,  by 


boen  rccpntly  stolen,  without  bei>i;j;  ablo  to  give  a  roasonaMe  cxjilanation  as 
to  how  ho  camo  by  it,  tliis  is  evidence  wliicli  would  supjinrt  a  verdict  of 
guilty.  But  it  would  be  improper  to  H.iy  to  the  Jury  that  they  would  be 
justified  in  finding  a  defendant  guilty  upon  such  evidence,  as  it  is  a  (jues- 
tion  of  fact  for  them  to  decide  whether  the  evidence  satisfies  theui  of  the 
guilt  of  the  accused  beyond  a  reasonable  doubt.  The  presuni|iticm  arising 
from  the  possession  of  property  recently  stolen  is  one  of  fact,  not  of  law. 
Evt>ry  legal  presumption  is  in  favor  of  the  acnnised,  and  the  law  never  deals 
in  pri'suinptions  as  to  his  guilt.  Space  will  not  i)ermit  an  elaborate  discus- 
sion of  the  question  here;  sullice  it  to  say  that  the  generally  accepted 
theory  that  the  prisoner's  exclusive  and  unexplained  possession  of  stolen 
projierty  recently  after  the  theft  raises  the  presumption  that  he  is  the  thief, 
and  that  this  presumption  takes  the  burden  of  proof  from  the  prosecutor 
and  lays  it  upon  the  prisoner,  is  so  inconsistent  with  the  legal  presumption 
of  the  innocence  of  the  accused  that  one  or  tlie  other  has  no  place  in  crim- 
inal procedure.  The  true  theory  is  that  the  jury  may  legitimately  infer 
that  the  person  in  whose  possession  ])roperty  recently  stolen  has  been  found 
is  the  thief,  and  unless  he  gives  such  satisfactory  explanation  of  his  recent 
possession,  or  unless  the  circumstances  of  the  case  are  such  as  to  create  in 
their  minds  a  reasonable  doubt  of  his  guilt,  they  ai'e  justifletl  in  convicting 
him.  The  law  upholds  a  conviction  under  such  circumstances  precisely 
the  same  as  it  upholds  a  conviction  upon  circumstantial  evidence,  i)f()vided, 
in  the  opinion  of  the  court,  the  jury  was  not  influenced  by  passion,  prej- 
udice, or  the  like,  in  arriving  at  its  conclusion. 

In  the  recent  case  of  State  v.  Manlij,  74  Iowa,  501,  the  following  instruc- 
tion was  held  erroneous:  "The  law  is  that  when  property  recently  stolen 
is  found  in  the  [lossession  of  any  person  the  burden  of  proof  is  upon  such 
person  to  slunv  how  be  came  into  jjossession  thereof;  and  unless  he  shows 
that  he  came  into  the  possession  of  said  property  honestly,  then  the  law 
will  presume  he  stole  the  same.  And  in  tiiis  case  if  you  find  and  believe 
from  tlie  evidence  tiiat  tiie  cow  mentioned  in  the  indictment  was  the  prop- 
erty of  tiie  said  Keott  McFarlanil,  and  that  she  had  been  stolen  from  him, 
and  that  recently  there  afti'r  she  was  in  the  possession  of  the  defendant, 
then  you  are  instrncled  that  the  burden  would  be  im  the  defendant  to  show 
that  he  <lid  not  steal  the  cow,  and  Huh  iroitld  he  HiiJJicicnt  to  warrant  you 
in  JiiKliiiij  llic  ilfj'ciiilaiit  (jiiilli/,  '(///cn.h  /)(ih  Jiiid  that  said  drfciidant  has 
cxttdilitilu'  I  Id  i/oiir  sati.'ifdctioii.  tliat  lie  did  NOT  xteal  mid  cow."  In  its  dis- 
approval of  the  iiislrnetioii  t!ie  court  says:  "  Under  it  the  jury  were  war- 
ranted in  coiivietiu!!;  the  defendiint  on  ])roof  of  tiie  fact  that  he  bad  the 
stolen  property  in  ids  p(Jssession.  unless  he  had  established  to  their  satis- 
faction th;it  he  did  not  steal  it.  Hut  that  is  not  the  rule.  Tlie  defendant 
was  entitled  to  an  ac(iiiiltal  uidess  tiie  jury  could  say,  upon  a  consider- 
ation of  all  of  till' evidence,  that  they  entertained  no  reasonable  doubt  of 
his  guilt." 

Vol.  VII  — 2a 


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338 


AMERICAN  CRIMINAL  REPORTS. 


State  v.  Slinqerland. 


Larceny:  Lueri  causa- 


(19  Nev.,  185.) 

•  Credibility   of  defendant's   testimony  —  Good 
character. 


1.  Larceny  — Taking  without  intent  to  deprive  owner  of  the  prop- 

erty.—  The  crime  of  lar«eny  is  established  by  proof  that  the  defend- 
ant, in  taking  the  property,  intended  to  permanently  deprive  tiie 
owner  of  it,  although  the  intention  did  not  include  the  possession  of 
the  property  for  defendant's  pecuniary  profit.' 

2.  Evidence  —  Testimony  of  accused  —  Rule  of  credibiuty.— When 

in  a  criminal  case  defendant  offers  himself  as  a  witness,  the  jury  is  to 
give  to  his  testimony  all  the  credit  to  which  it  is  entitled;  but,  as 
bearing  upon  the  question  of  credibility  in  this  connection,  the  jury 
must  consider  the  situation  of  defendant. 

8.  Instruction  as  to  circumstantial  evidence.—  Tiio  court  properly 
instructed  the  jury  "  that  when  the  evidence  is  entirely  circumstan- 
tial, yet  is  not  only  consistent  with  the  guilt  of  the  defend.nnt,  but  in- 
consistent with  any  other  rational  conclusion,  the  law  makes  it  the 
duty  of  the  jury  to  convict,  notwithstanding  such  evidence  may  not 
be  as  satisfactory  to  their  minds  as  the  direct  testimony  of  credible 
eye-witnesses." 

4.  Previous  good  character  of  accused.—  Previous  good  character  is 
not  to  be  offered  in  evidence  only  in  cases  where  the  guilt  of  accused 
is  not  proved,  but  is  to  be  considered  as  part  of  the  testimony  upon 
which  the  fact  itself  of  guilt  or  innocence  is  to  be  found ;  and  if  from 
all  the  evidence  in  the  case,  including  that  in  relation  to  character, 
they  believe  the  defendant  guilty  beyond  a  reasonable  doubt,  previous 
good  character  would  not  authorize  an  acquittal. 

Appeal  from  a  judgment  of  the  Sixth  Judicial  District 
Court,  Eureka  County,  convicting  the  defendant  of  grand  lar- 
ceny, and  from  an  order  overruling  his  motion  for  a  new  trial. 
The  opinion  states  the  facts. 

Fitzgerald  t6  Beatty,  for  appellant. 

TT".  II.  Davenport,  attorney-general,  and  H.  F.  Bartine,  for 
respondent. 

Leonard,  J.  Appellant  was  convicted  of  the  crime  of  grand 
larceny.  He  appeals  from  the  judgment,  and  the  order  over- 
ruling his  motion  for  new  trial.  He  was  accused  and  found 
guilty  of  stealing  two  horses,  two  saddles  and  a  pair  of  spurs. 

1  See  note. 


STATE  V.  SLINGERLAND. 


339 


He  admitted  that  he  took  the  property,  and  removed  it  about 
five  miles  away.  He  said  his  object  was  to  put  the  owner  to 
all  the  expense  and  trouble  possible  in  order  to  find  the  prop- 
erty;  that  he  had  no  idea  of  benefiting  himself  in  any  way, 
his  only  object  having  been  to  get  revenge. 

1.  The  court  instructed  the  jury  that  if  they  believed  beyond 
a  reasonable  doubt  that  the  defendant  took  the  property,  as 
alleged  in  the  indictment,  with  the  intent  to  permanently  de- 
prive the  owner  of  the  property,  an  I  without  an  intention  to 
return  the  same,  it  was  a  felonious  intent  and  the  defendant 
was  guiltv.  It  is  claimed  that  this  instruction  is  erroneous  in 
stating  that  the  crime  of  grand  larceny  may  be  committed 
although  the  taker  of  the  property  alleged  to  have  been  stolen 
derives  no  benefit,  and  docs  not  intend  or  expect  to  be  benefited 
therefrom.  If  one  of  the  essential  elements  of  larceny  is  an 
intention  to  profit  by  the  conversion  of  the  property,  then  the 
instruction  under  consideration  was  incorrect.  A  court  cannot 
instruct  a  jury  that  certain  facts  constitute  a  certain  offense, 
unless  every  essential  fact  necessary  to  constitute  the  offense 
be  included  in  the  statement.  Weston  v.  U.  S.,  5  Cranch,  C.  C, 
49'!:.  Although  the  authorities  upon  this  question  are  some- 
what conflicting,  those  sustaining  the  instruction  greatly  pre- 
ponderate, and  in  our  opinion  they  are  upheld  by  good  sense 
and  sound  reason. 

In  iState  v.  Ri/an,  12  Nev.,  403,  this  court  acknowledged  the 
correctness  of  the  principle  that,  where  the  intent  is  to  deprive 
the  owner  of  his  property,  it  is  not  essential  that  the  taking 
should  be  with  a  view  to  pecuniary  profit. 

In  Dignowitty  v.  State,  17  Tex.,  530,  the  court  said: 
"But,  to  constitute  the  felonious  intent,  it  is  not  necessary 
that  the  taking  should  be  done  lucri  causa;  taking  with  an  in- 
tention to  destroy  will  be  sufiicient  to  constitute  the  offense,  if 
done  to  serve  the  offender  or  another  person,  though  not  in  a 
pecuniary  way." 

And,  said  the  court,  in  Ilamilton  v.  State,  35  Miss.,  219: 
"  The  rule  is  now  well  settled  that  it  is  not  necessary,  to  con- 
stitute larceny,  that  the  taking  should  be  in  order  to  convert 
the  thing  stolen  to  the  pecuniar}'  advantage  or  gain  of  the 
taker,  and  that  it  is  sufficient  if  the  taking  be  fraudulent,  and 
with  an  intent  wholly  to  deprive  the  owner  of  the  property. 


tt     i'y  -, 


.'  <■ 


I  f« 


340 


AMERICAN  CRIMINAL  REPORTS. 


Roscoe,  Cr.  Ev.,  533  (2d  ed.);  Galhage's  Case,  Russ.  &  R.,  292; 
Rex  V.  Morfit,  id,,  308.  And  it  is  said  by  the  commissioners  of 
criminal  law  in  England  that  '  the  ulterior  motive  by  which 
the  taker  is  influenced  in  depriving  the  owner  of  his  property 
altogether,  whether  it  be  to  benefit  himself  or  another,  or  to 
injure  any  one  by  the  taking,  is  immaterial.'  The  rule  we  con- 
sider to  be  in  accordance  with  the  principle  on  which  the  law 
of  larcen}'  rests,  which  is  to  punish  the  thief  for  wrongfully 
and  feloniously  depriving  the  owner  of  his  property.  The 
reason  of  the  law  is  to  secure  a  man's  property  to  him,  and 
that  is  to  be  carried  out,  rather  by  punishing  the  thief  for 
feloniously  depriving  him  of  it  than  for  wrongful  gain  he  has 
made  by  the  theft.  The  moral  wrong  is  founded  in  the  wrong- 
ful and  felonious  deprivation." 

Sustaining  the  same  doctrine  in  Warden  v.  State,  GO  Miss., 
640,  the  court  said : 

"  It  seems  to  meet  the  approval,  also,  of  most  of  the  modern 
writers  on  criminal  law,  and  to  be  sanctioned  by  many  cases, 
both  English  and  American." 

In  State  v.  South,  28  N.  J.  Law,  28,  the  question  was  whether 
the  fraudulently  depriving  the  owner  of  the  temporary  use  of  a 
chattel  is larcen}^  at  common  law;  whethor  the  felonious  intent 
or  animus  fur  and  I  may  consist  with  an  intention  to  return  the 
chattel  to  the  owner.  It  was  held  that  if  the  property  is  taken 
with  the  intention  of  using  it  temporarily  only,  and  then  re- 
turning it  to  the  owner,  it  is  not  larceny;  but  if  it  appear  that 
the  goods  were  taken  with  tlio  intention  of  permanently  de- 
priving tlie  owner  tliereof,  then  it  is  larceny.  And  in  Slate  v. 
Davis,  ;>S  N.  J.  Law,  177,  the  same  court  adhered  to  the  doc- 
trine annt)unced  in  SoutWs  Case,  and  said: 

"There  has  been  no  case  decided  in  tiiis  state  that  has  held 
that,  where  tiie  taker  had  no  intention  to  return  the  goods, 
that  the  taking  was  merely  temporary.  Nor  is  there  anything 
that  should  control  the  action  of  the  jury,  or  the  court  acting 
as  such  under  the  statute,  wlien  they  lind  that  the  party  hav- 
ing no  such  intent  is  guilty  of  larceny.  It  would  be  a  most 
dangerous  doctrine  to  hold  that  a  mere  stranger  may  thus  use 
and  abuse  the  property  of  another,  and  leave  him  the  bare 
chance  of  recovering  it  by  careful  pui'suit  and  search,  without 
any  criminal  responsibility  in  the  taker." 


STATE  V.  SLINOERLAND. 


841 


In  Bernj  v.  State,  31  Ohio  St.,  219,  and  Com.  v.  Mason,  105 
Mass.,  160,  it  was  hold  that  the  wrongful  taking  of  the  prop- 
erty of  another,  without  his  consent,  with  intent  to  conceal  it 
until  the  owner  offered  a  reward  for  its  return,  and  for  the 
purpose  of  obtaining  the  reward,  was  larceny  of  the  property 
taken.  And  see,  also.  People  v.  Juarez,  28  Cal.,  380;  State  v. 
Brown,  3  Strobh.,  51(1;  Keebj  v.  State,  14  Ind.,  36;  Hex  v.  Gab- 
laye,  lluss.  &  It.,  292;  Hex  v.  Morfit,  id.,  3u7;  note  a  to  Hollo- 
way's  Case,  1  Denison,  Cr.  Cas.,  370.  Counsel  for  appellant 
places  great  reliance  upon  State  v.  Hawkins,  8  Port.  (Ala.), 
461,  wherein  it  was  held  that  taking  a  slave  in  order  to  set  her 
free  was  not  larceny;  but  the  doctrine  of  that  case  has  been 
repudiated  by  the  same  court  in  the  case  of  WlUiaiiis  v.  State, 
52  Ala.,  413,  decided  in  1875,  wherein  it  was  said: 

"  The  second  charge  was  also  properly  refusetl.  To  consti- 
tute the  otFense  of  larceny  it  is  not  necessary  the  taking  should 
have  been  with  an  intent  to  appropriate  the  goods  to  the  use 
or  benefit  of  the  person  taking.  The  criminal  intent  consists 
in  the  purpose  to  deprive  tlio  owner  of  his  property.  No 
benefit  to  the  guilty  agent  may  be  sought,  but  only  injury  to 
the  owner." 

Reliance  is  also  placed  upon  section  1783  of  Wharton's 
American  Criminal  Law,  where  the  author  says: 

"In  this  country  there  has  been  some  reluctance  to  accept 
this  supposed  modification  of  the  common-law  definition  of 
larceny,  and  in  one  or  two  cases  it  has  been  expressly  rejected. 
Thus,  It  has  been  declared  not  to  be  larceny,  but  malicious 
mischief,  to  take  the  horse  of  another,  not  lacrl  causa,  but  in 
order  to  destroy  him."  Citing  State  v.  Council,  1  Tenn.,  305; 
Com.  V.  Leach,  1  Mass..  59;  People  v.  Smith,  5  Cow.,  258;  and 
State  V.  Wheeler,  3  Vt.,  344,  as  authorities  for  the  statement. 

It  will  be  found,  upon  an  examination  of  those  cases,  that 
no  one  of  them  sustains  the  text. 

Mr.  Stephen,  in  his  General  View  of  the  Criminal  Law  of 
England,  127,  says: 

"  It  is  larceny  to  take  and  carry  away  a  personal  chattel 
from  the  possession  of  its  owner  with  intent  to  deprive  him 
of  the  property." 

Mr.  Koscoe,  in  bis  Criminal  Evidence,  621,  says: 

"Eyre,  C.  B.,  in  the  definition  given  by  him,  says,  'larceny 


3:12 


AMERICAN  CRIMINAL  REPORTS. 


■."•■;!■ 


!■»' 


is  the  wrongful  taking  of  the  goods  with  intent  to  spoil  tlio 
owner  of  them  lucri  cansa;^  and  Blackstone  says,  '  the  taking 
must  be  felonious;  that  is,  done  animo  furandi,  or, as  the  civil 
law  expresses  it,  ^«trimMsa.'  The  point  arrived  at  by  those 
two  expressions,  animo  furandi  and  luct'i  caum,  the  moaning 
of  which  has  been  much  discussed,  seems  to  be  this:  that  tiie 
goods  must  be  taken  into  the  possession  of  the  thief  with  the 
intention  of  depriving  the  owner  of  his  properUj  la  tliem. 
.  .  .  Property  is  the  right  to  the  possession,  coupled  with 
an  ability  to  exercise  that  right.  Bearing  this  in  mind,  we  may 
perhaps  safely  define  larceny  as  follows:  the  wrongful  taking 
possession  of  the  goods  of  another  with  intent  to  deprive  the 
owner  of  \\\^ property  in  them." 

And  see  Archb.  Crim.  Pr.  and  PI.  (Pomeroy's  notes),  1185; 
Barb.  Crim.  Law,  174;  2  Bish.  Crim.  Law,  848. 

Against  these  authorities,  besides  Hawkins'  Case  and  Whar- 
ton, above  cited,  we  are  referred  to  four  cases,  viz. :  People  v. 
Woodward,  31  llun,  57;  Smith  v.  Sohidtz,  1  Scam.,  490;  117^ 
son  V.  People,  39  N.  Y.,  459;  and  United  States  v.  Darlice,  1 
McAll.,  196.  In  Woodward'' s  Case  there  was  an  able  and  ex- 
haustive dissenting  opinion  by  one  of  the  three  justices,  and 
no  authorities  are  cited  in  support  of  the  majority  opinion  ex- 
cept Wharton's  Criminal  Law,  section  1784,  and  certain  cases 
therein  referred  to,  which  do  not  sustain  the  text.  In  Smith 
V.  Schultz  the  court  only  says : 

"Every  taking  of  the  property  of  another  without  his 
knowledge  or  consent  does  not  amount  to  larceny.  To  make 
it  such  the  taking  must  be  accompanied  by  circumstances 
which  demonstrate  a  felonious  intention." 

But  the  court  does  not  say  there  can  be  no  felonious  intent 
except  there  be  a  taking  lucri  causa.  In  Ilolloway's  Case, 
Parke,  B.,  defined  "felonious"  to  mean  that  there  is  no  color 
of  right  or  excuse  for  the  act,  and  the  intent  must  be  to  de- 
prive the  owner,  not  temporarily,  but  permanently,  of  the 
property.  In  Wilsoii's  Case  it  was  only  decided  that  the  felo- 
nious intent  must  exist  at  the  time  of  the  taking.  In  Durhee's 
Case  the  court  instructed  the  jury  as  follows: 

"(1)  That  if  you  believe,  from  the  evidence,  that  the  prisoner 
took  and  carried  away  the  arms  with  the  intent  to  appropriate 
them,  or  any  portion  of  them,  to  his  own  use,  or  permanently 


STATE  V.  SLINGERLAND. 


343 


10 

ii 

iO 


deprive  the  other  of  the  same,  then  he  is  guilty.  (2)  But  if 
you  shall  believe  that  he  did  not  take  the  arms  for  the  purpose 
of  appropriating  them,  or  any  part  thereof,  to  his  own  use, 
and  only  for  the  purpose  of  preventing  their  being  used  on 
himself  or  his  associates,  then  the  prisoner  is  not  guilty." 

There  is  nothing  in  the  instructions  quoted  opposed  to  the 
doctrine  we  are  endeavoring  to  maintain,  although  there  is 
much  in  the  address  to  the  jury  which  does  not  accord  with 
our  ideas  of  the  law.  To  constitute  larceny  the  taking  must 
be  felonious,  and  it  is  so  when  the  intent  is  to  permanently 
deprive  the  owner  of  his  property  against  his  will.  The  court 
did  not  err  in  giving  the  fourth  instruction. 

2.  Objection  is  made  to  the  third  instruction,  which  is  sub- 
stantially the  same  as  was  given  in  Hlmfs  Case,  16  Nov.,  310. 
See,  also,  People  v.  Cronin,  34  Cal.,  203,  and  People  v.  Morrow, 
CO  Cal.,  147.  When  a  defendant  in  a  criminal  case  offers  him- 
self as  a  witness  in  his  own  behalf,  it  is  the  duty  of  the  jury  to 
give  to  his  evidence  all  the  credit  to  which  it  is  entitled;  but 
in  ascertaining  the  extent  of  its  credibility  it  is  proper  and 
necessary  to  consider  the  situation  in  which  he  is  placed.  A 
person  accused  of  a  crime  may  speak  the  truth,  and  it  is  for 
the  jury  to  say,  in  view  of  all  the  facts,  whether  or  not  he  has 
done  so  in  whole  or  in  part.  They  should  give  proper  weight 
and  effect  to  all  of  his  evidence,  if  they  are  convinced  of  its 
truth,  or  so  much  thereof  as,  in  their  best  judgment,  is  entitled 
to  credit.  Such,  we  think,  is  the  natural  construction  to  be 
[)laced  upon  the  instruction  under  consideration. 

3.  The  second  instruction  was  correct.  People  v.  Cronin,  34 
Cal,  191;  State  v.  Nelson,  11  Nov.,  341. 

4.  The  first  instruction  given  on  behalf  of  the  state  is  as 
follows: 

"The  court  instructs  the  jury  that  the  good  character  of  the 
defendant  can  only  be  taken  into  consideration  when  the  jury 
have  a  reasonable  doubt  as  to  whether  the  defendant  is  the 
person  who  committed  the  offense  with  which  he  is  charged ; 
and  if  you  believ  j  from  the  evidence  that  the  defendant  is 
guilty,  then  if  the  defendant  has  proved  a  previous  good  char- 
acter such  good  character  would  be  of  no  avail  to  him,  and 
would  not  authorize  an  acquittal." 

The  first  part  of  tiiis  instruction  was  copied  from  that  given 


iJ44 


AMERICAN  CRIMINAL  REPORTS. 


m 

m 


,>*\s 


in  People  v.  Gleason,  1  Nev.,  170,  and  in  tliat  case  upliolil  by 
this  court.  The  last  portion  was  takon  from  the  court's  in- 
struction in  Ltvlyne's  Case,  17  Nov.,  445,  given  in  connection 
witli  two  other  instructions  requested  by  the  defendant.  In 
this  case  we  said : 

"liy  the  three  instructions  under  consideration  the  jury 
were  charged  to  consider  all  the  testimony  admitted  in  the 
case,  including  that  in  relation  to  previous  good  character,  and 
if,  from  the  whole,  they  believed  the  defendant  guilty,  then 
they  should  not  acquit  him,  although  he  had  borne  a  good 
character  previously." 

Such  we  declared  was  the  true  rule.  It  is  consonant  with 
reason,  and  upheld  by  the  latest  and  best  autliorities. 

The  instruction  given  and  uplicld  in  Olensoiiii  Case  wo  do 
not  liUe;  and  we  did  not  say  that  the  court's  instruction  in 
Lci'ujne's  Case  would  have  been  correct  by  itself  alone.  We 
only  declared  it  correct  as  it  was  given,  in  connection  with  the 
two  requested  by  defendant.  We  do  not  like  the  first  instruc- 
tion given  in  this  case.  All  in  all,  it  conveys  to  our  minds  the 
idea  that  evidence  of  the  defendant's  good  character  could  not 
be  considered,  unless,  from  the  other  evidence  admitted,  the 
jury  had  a  reasonable  doubt  of  the  defendant's  guilt.  Upon 
the  question  of  guilt  or  innocence  they  should  have  been 
charged  to  consider  all  the  evidence  in  the  case,  including  that 
in  relation  to  character,  and  if  therefrom  they  believed  him 
guilty  beyond  a  reasonable  doubt,  previous  good  character 
would  not  authorize  an  acquittal. 

Uut  although  the  instruction  in  question  was  not  proper,  it 
ought  not,  in  this  case,  to  reverse  the  judgment,  because  the 
undisputed  facts,  his  own  testimony  included,  made  him  guilty, 
no  matter  how  fair  a  character  he  had  previously  borne.  He 
admitted  the  taking,  and  did  not  claim  that  he  intended  to 
return  the  property  to  the  owner  at  any  time.  It  was  not  to 
be  returned,  and  the  owner  was  not  to  get  it  back,  unless, 
after  much  trouble  and  expense,  he  might  succeed  in  finding 
it.  After  the  larceny  was  committed  he  told  the  owner  that 
he  had  taken  the  property,  and  where  it  could  be  found;  but 
this  was  done  in  consideration  of  a  promise  not  to  prosecute 
him  for  taking  another  horse,  not  voluntarily.  The  jury  must 
have  found  that  appellant  intended  to  deprive  the  owner  per- 


PEOPLE  r.  AIKEN. 


345 


in- 

i(m 

In 


manontly  of  the  property,  for  they  were  instructed  to  acquit 
liim  if  lie  took  it  with  the  intent  to  hide  the  sauu)  and  uiako 
trouble  for  the  owner,  and  then  return  it,  and  not  to  derive 
any  benefit  therefrom.  If  appelhint  liad  taken  the  property 
just  as  lie  did  for  the  purpose  of  gain  to  himself,  rather  than 
out  of  revenge,  it  is  conceded  that  ho  would  have  been  guilty 
of  the  offense  charged.  In  that  case  no  amount  of  testimony 
establishing  former  good  character  could  have  induced  a  doubt 
of  guilt.  In  view  of  our  conclusion  upon  the  fourth  instruc- 
tion, the  same  is  true  now. 
.hulgment  and  order  appealed  from  afiirmed. 

'SoTK.—  I iitcnt  to  permanentli/  deprive  otvncr  of  hia  ivoperty.—lhe 
facts  tliat  Olio  took  a  horse  from  tlie  promises  of  its  owner,  witliout  tlio  lat- 
tur's  kiu)\vle(lge  or  consent,  rode  it  for  a  certain  distance,  and  tlien  aban- 
doned it,  after  removing  and  concealing  tiie  saddle  and  hlanket,  are  sufH- 
oieiit  to  justify  a  finding  of  intent  to  permanently  deprive  the  owner  of  his 
property,  although  the  person  charged  has  testified  that  he  expected  some 
one  to  take  the  jnoperty  back,  or  that  lie  expected  the  animal  to  stray  back. 
aiute  V.  IVurd,  19  Nev.,  a97. 


Pkople  v.  Aikex. 

33  N.  W.  R.  (Mich.),  831. 
MANSLACanTER :  Producing  abortion  —  Eapertu  —  Circumstantial  evidence. 

1.  Indictment  —  Joinder  op  counts  —  Motion  to  elect.—  An  information 

containing  three  counts  drawn  under  section  9107  of  Howell's  Statutes 
of  Michigan,  and  charging  respondent  with  criminal  abortion,  and  an 
additional  count  charging  manslaughter  at  common  law  committed 
upon  a  diiy  subseijuent  to  the  time  mentioned  in  the  former  counts, 
charges  offenses  which  are  different  in  their  nature,  and  it  was  error 
to  overrule  a  motion  to  elect,  made  at  the  close  of  the  testimony. 

2.  Declakations  of  deceased. —  Upon  tho  trial  of  a  respondent  under  an 

information  charging  criminal  abortion,  declarations,  made  by  the 
deceased  girl,  of  what  the  respondent  had  said  or  done  a  day  or  two 
before  she  made  the  declarations,  ai"e  purely  hearsay,  and  will  not  be 
admitted. 

3.  Experts—  Hypothetical  questions  —  Mode  of  pkopoundino.— Upon 

a  trial  for  abortion,  counsel,  in  putting  hypothetical  questions  to  ex- 
pert medical  witnesses,  will  not  be  allowed  to  ask  their  opinions  as  to 
the  testimony  of  other  witnesses,  without  stating  to  the  former  the 
particular  jjoints  of  the  evidence  of  the  latter.' 

1  See  note. 


846 


AMERICAN  CRIMINAL  RFI'ORTS. 


'«K 


4.  Circumstantial  EVIDENCE  —  Quantum  of  proof.— In  a  case  in  which 

the  prosecutor  sought  to  convict  the  defendant  upon  evidence  that  was 
purely  circumstantial,  the  trial  court  should  instruct  the  jury  to  the 
elFeft  tiiat  each  necessary  link  in  the  testimony,  and  every  material 
and  necessary  fact  upon  which  a  conviction  depends,  must  be  proven 
beyond  a  reasonable  doubt,  and  that,  if  any  of  the  facts  or  circum- 
stances established  be  absolutely  inconsistent  with  the  hypothesis  of 
guilt,  that  hypothesis  cannot  be  true. 

5.  New  TRIAL— Uemauks  op  counsel. —  Where  there  was  no  evidence 

whatever  in  this  proceeding  to  sustain  the  charge  of  manslaughter 
contained  in  the  last  count  of  the  information,  it  is  improper  for  the 
pi-osecuting  attorney,  in  liis  argument  to  the  jury,  to  assume  that 
there  was  such  evidence. 

Exceptions  from  Superior  Court  of  Grand  Rapids. 

Moses  Taggart,  attorney-general,  for  plaintiff. 

Smiley  (&  Earle,  for  defendant. 

Morse,  J.  Mary  Noel,  the  daughter  of  John  Noel,  a  farmer 
residing  a  few  miles  out  of  the  city  of  Grand  Rapids,  became 
intimate  with  a  young  man  by  the  name  of  Hamilton,  and 
from  such  intimac/  her  pregnancy  resulted.  Some  time  in 
January  or  Febriiary,  1880,  her  condition  was  discovered  by 
her  famil3\  Hamilton  refused  to  marry  the  girl,  and  meas- 
ures were  taken  to  conceal  her  pregnancy  from  the  world  at 
large.  One  Dr.  Weston,  the  family  physician,  was  consulted, 
and  finally  it  was  thought  best  by  all  concerned  to  let  nature 
take  its  course.  It  was  agreed  by  the  girl,  her  family  and 
young  Hamilton  that  a  lying-in  place  should  be  secured  in 
Grand  Rapids  as  private  as  possible,  and  that  slie  should  be 
put  under  the  care  of  a  reputable  physician  in  that  city,  who 
should  attend  her  during  her  sickness  and  confinement.  Ham- 
ilton, who  was  studying  medicine,  undertook  to  engage  such 
physician.  He  called  upon  the  respondent,  who  had  been 
practicing  his  profession  for  many  years  in  the  city  of  Grand 
Rapids,  and  arranged  with  him  to  find  a  suitable  boarding- 
place  for  the  girl.  It  was  agreed  that  respondent  should  be 
paid  $100  to  cover  the  expenses  of  board  and  his  medical 
services.  Respondent  engaged  Ijoard  for  her  at  a  Mrs.  Sleight's, 
who  was  then  boarding  one  or  twc  women  afflicted  with  the 
same  trouble.  February  19,  ISSH,  Mr.  Noel,  in  pursuance  of 
this  arrangement,  brought  his  daughter  to  the  respondent's 


PEOPLE  V.  AIKEN. 


347 


office,  paid  him  §90,  and  returned  home.  It  appears  that  he 
afterword  paid  the  doctor  the  remaining  §10.  Hamilton  gave 
Noel  ^)25  in  money,  and  his  note  for  §100,  the  agreement  be- 
in^  that  he  should  pay  all  necessary  expenses.  The  same 
evening,  about  dark,  she  arrived  at  Mrs.  Sleight's.  She  drank 
a  cup  of  tea,  and  went  to  bed  about  8  o'clock.  Soon  after 
she  called  Mrs.  Sleight,  who  found  her  suffering  from  a  chill. 
She  was  sick  from  that  lime  until  the  2Gth  of  February,  1886, 
when  she  died.  Aiken  visited  her,  and  prescribed  for  her  dur- 
ing her  sickness.  On  Sunday  morning,  February  21,  she  was 
delivered  of  a  dead  foitm.  Mrs.  Sleight  thinks  the  child  was 
between  live  and  six  months  old.  She  swears  that  Dr.  Aiken 
came  that  morning,  removed  the  after-birth,  and  took  away 
ihe  foitus  in  a  hand-satchel.  He  also  directed  ergot  to  be 
administered  to  stop  flowing.  On  Monday  following  the  re- 
spondent brought  Dr.  Sligh  there.  During  the  girl's  illness 
he  also  brought  a  Dr.  Best  with  him  to  see  his  patient,  who 
visited  her  three  or  four  times,  in  comjjany  with  respondent, 
between  the  22d  of  February  and  the  time  of  her  death.  Dr. 
Sligh  first  saw  the  girl  on  the  22d  of  February.  He  called 
upon  her  at  the  request  of  respondent.  He  visited  her  but 
once.  Respondent  asked  him  to  go  the  next  day,  but  he  re- 
fused, and  thereu|)on  Dr.  Aiken  procured  the  services  of  Dr. 
Best,  who  first  saw  her  on  the  23d.  The  next  day  after  her 
death  a  post-mortem  examination  was  held,  principally  con- 
ducted by  Dr.  De  Camp,  who  was  assisted  by  Drs.  Edie,  Clark, 
Graves  and  Bradish. 

On  the  8th  day  of  March,  1880,  Dr.  Aiken  was  arrested 
upon  a  warrant  issued  by  the  judge  of  the  police  court,  charg- 
ing him  with  manslaughter,  lie  had  an  examination  on 
such  warrant,  and  on  the  14th  day  of  May,  188G,  was  bound 
over  to  the  superior  court  of  the  city  of  Grand  Rapids  to 
await  his  trial.  In  the  September  term  of  that  court  the  pros- 
ecuting attorney  filed  an  information  against  him,  said  infor- 
mation containing  four  counts.  The  first  count  corresponded 
with  the  complaint  and  warrant,  and  alleged  that  on  the  26th 
day  of  Febi'uary,  1880,  at  the  city  of  Grand  Eapids,  in  the 
county  of  Kent,  the  said  Nathan  J.  Aiken  feloniously  and 
wilfully  did  kill  and  slay  one  Mary  Noel,  contrary  to  the  stat- 
ute, etc.     The  second  and  third  counts  charged  statutory  man- 


348 


AMERICAN  CRIMINAL  REPORTS. 


v.! 


>       '    M 


slaughter  (IIow.  St.,  §  9107),  the  second  count  alleging  the 
administering  of  medicines  and  drugs,  and  the  third  the  use 
of  an  instrument.  These  counts  charged  the  means  of  tli.' 
abortion  with  having  been  used  on  the  19th  of  Fdi 
ISbG.  The  fourth  count  was  as  follows:  "And  the  prosecut- 
ing attorney,  who  prosecutes  as  aforesaid,  further  gives  the 
said  court  here  to  understand  and  be  informed  that  the  said 
iSTathan  J.  Aiken,  late  of  the  cit}"^  aforesaid,  at  the  county 
aforesaid,  on,  to  wit,  the  said  19th  (iay  of  February,  A.  D. 
188G,  at  the  city  aforesaid,  in  the  county  aforesaid,  took  the 
care  and  charge  of  the  said  Mary  Noel,  she,  the  said  JMary 
ISToel,  bein^'  then  and  there  pregnant  witli  child,  as  a  man  mid- 
wife, and  to  assist  and  attend  upon  and  take  care  of  hor,  the 
said  Mar}'  Xoel,  and  do  everything  needful  and  proper  to  and 
for,  during  and  after  the  time  of  her  labor  and  deUvery  of  the 
said  child,  wherewith  the  said  Mary  Xoel  was  then  and  there 
pregnant;  and  that  the  said  Xathan  J.  Aiken  afterwards,  and 
while  he  had  such  care  of  the  said  Mary  Noel  as  aforesaid, 
and  immediately  after  the  said  Mary  was  delivered  of  the  said 
child  wherewith  she  had  then  latel}'  before  been  pregnant, 
to  wit,  on  the  21st  day  of  February,  A.  D.  188G,  at  the  city 
aforesaid,  in  the  county  aforesaid,  her,  the  said  I^lary  Xool, 
lying  on  a  bed  in  great  illness,  pain  and  weakness,  did  on  the 
last-mentioned  day  there  feloniously  neglect  and  refuse  to  at- 
tend upon,  and  to  take  proper,  suiticient  and  necessai-y  care 
of,  and  to  render  her  proper  and  necessary  assistance,  and  did 
then,  on  said  last-mentioned  day,  there  feloniously  negie(.  c  and 
refuse  to  do  to  and  for  her,  being  in  such  state,  and  did  there, 
on  said  last-mentioned  day,  there  leave  and  desert  the  said 
Mary  Noel  in  such  state  as  aforesaid,  without  a  })roper  and 
sufficient  person  to  take  care  of  her,  and  to  do  for  her  what 
was  needful  for  her,  being  in  such  state,  and  unable  to  take 
care  of  and  to  do  what  was  needful  and  necessary  for  herself, 
and  that  by  reason  and  means  of  the  said  Nathan  J.  Aiken, 
there,  on  said  last-mentioned  day,  so  neglecting  and  refusing, 
as  aforesaid,  to  do  to  and  for  her,  the  said  Mary  Noel,  what 
was  needful  and  proper  for  hor,  and  by  the  said  Nathan  J. 
Aiken  so  leaving  and  deserting  the  said  Mary  Noel  as  afore- 
said, she,  the  said  Mary  Noel,  became  mortally  sick,  emaciated 
and  enfeebled  of  body,  and  uf  said  mortal  sickness,  emaciation 


PEOPLE  V.  AIKEN. 


340 


and  feebleness  of  body,  on  and  from  the  said  last-mentioned 
(lav  until  the  said  2Gth  day  of  February,  A.  D.  1S8G,  at  the 
city  aforesaid,  in  the  county  aforesaid,  did  languish,  and  lan- 
guishing did  die,  on  which  20th  day  of  February,  A.  D.  ISSG, 
she,  the  said  Mary  Noel,  at  the  city  aforesaid,  in  the  county 
aforesaid,  of  the  said  mortal  sickness,  emaciation  and  feeble- 
ness of  body  died,  and  so  the  said  Nathan  J.  Aiken,  in  manner 
and  form  aforesaid,  feloniously  did  kill  and  slay  the  said  Mary 
Xoel,  contrary  to  the  statute  in  such  case  made  and  provided, 
a;:^!iinst  the  peace  and  dignity  of  the  people  of  the  state  of 
Michigan." 

Upon  the  trial  the  first  count  was  practical!}'-  abandoned, 
and  the  jury  returned  a  general  verdict  of  guilty  upon  the  last 
tiiree  counts.  The  case  is  brought  here  upon  exceptions  before 
jiul;jiment.  A  large  number  of  errors  are  assigned,  but  we 
shall  notice  only  those  that  wo  think  are  important. 

The  counsel  for  the  respondent  moved,  after  the  withdrawal 
of  the  plea  of  not  guilty,  which  had  been  entered  pro  forma 
and  before  trial,  to  quash  the  second,  third  and  fourth  counts 
of  the  information,  on  the  ground  that  the  otfenses  charged 
therein  were  not  otfenses  named  in  the  complaint  and  warrant, 
and  on  which  the  respondent  was  examined  in  the  police 
court,  and  for  the  further  reason  that  the  fourth  count  stated 
no  crime  whatever.  The  motion  was  overruled  and  exception 
taken. 

As  far  as  the  second  and  third  counts  are  concerned,  the 
question  must  be  considered  as  settled  in  favor  of  the  ruling  of 
the  court  below.  It  is  not  necessary  to  review  the  reasons  for 
this  holding.  It  has  been  suHiciently  discussed  in  People  v. 
Siot'cney,  55  Mich.,  5SG;  People  v.  S/^sionti,  58  Mich.,  594,  and 
People  V.  McDoioell,  G3  Mich..  22!>.  Hut  in  relation  to  the 
fourth  count  I  am  satisfied  tiiut  the  motion  should  have  been 
sustained.  I  do  not  think  it  is  govorno'.l  by  either  of  the  de- 
cisions above  cited.  The  second  and  third  counts  are  only 
used  to  state  the  cnuimission  of  the  same  statutory  crime  of 
manslaughter  by  the  use  of  different  means,  both  of  which  are 
(Mubodiod  in  the  statute.  But  the  fourtli  count  does  not  come 
within  the  statute,  nor  can  it  be  considered  as  cluirging  in  any 
manner  the  crime  of  manslaughter  by  an  attempt  to  produce 


an  abortion, 


<;l- 


an  abortion.     It  cliarges  an  offense  entirely 


350 


AMERICAN  CRIMINAL  REPORTS. 


I,    .»;M'f 


removed  from  any  hint  of  an3'thing  but  a  natural  birth,  and 
the  sickness  of  the  mother  resulting  therefrom,  without  the 
criminal  ac<  of  any  person.     It  puts  the  respondent  on  trial 
for  the  criminal  neglect  of  the  respondent  as  a  man  midwife, 
to  whom  the  care  of  the  patient  had  been  committed,  and  un- 
dertakes to  hold  him  responsible  for  her  death  because  of  such 
criminal  neglect,  and  for  nothing  else.    It  is  conceded,  as  it 
was  decided  in  People  v.  Ohnstead,  30  Mich.,  431,  that  tlie  first 
count  could  not  be  used  to  convict  the  respondent  of  the  of- 
fense charged  in  this  fourth  count,  or  of  any  manslaughter 
arising  out  of  any  negligence  or  fault  from  which  death  was  a 
consequent lijl  result.    The  first  count  could  only  be  used  in 
cases  where  the  killing  resulted  directly  from  acts  of  violence. 
People  V.  Olmstead,  at  pages  438  and  439.     The  allowance  of 
the  use  of  the  second  and  third  counts,  bused  upon  a  complaint 
and  warrant  charging  manslaughter  as  in  the  first  count,  has 
been  justified  in  this  court  upon  the  ground  that  the  crime 
charged  therein  "  grew  out  of  the  same  transaction  —  the  same 
facts  —  as  in  the  first."     See  People  v.  Sessions,  58  Mich.,  at 
pages  590,  597.     But  it  must  be  remembered  that  when  this 
doctrine  is  applied  to  these  two  counts,  it  cannot  bo  extended 
so  as  to  admit  also  of  the  use  of  this  fourth  count,  without 
running  squarely  against  the  very  principle  upon  which  the 
allowance  of  the  second  and  third  counts  is  based.     If  these 
counts  grow  out  of  the  same  transaction  as  the  first  —  the 
same  facts  —  then  the  fourth  count  cannot,  as  the  charge  in  that 
count  does  not  involve  the  same  transaction  or  the  same  facts 
as  in  the  second  and  third.     Upon  a  trial  of  ihe  second  and 
third  counts  alone,  the  criminal  negligence  of  the  defendant  in 
his  care  of  the  girl  would  not  be  material,  unless  it  had  some 
tendency  to  show  that  he  was  guilt}'^  of  either  administering 
drugs  or  using  an  instrument  to  commit  an  abort'on,  from  the 
effects  of  which  she  died.     And  most  certainly,  if  he  had  been 
tried  upon  the  fourth  count  alone,  evidence  tending  to  show 
that  he  had  administered  drugs,  or  used  an  instrument,  prior 
to  the  date  of  the  neglect  charged,  to  cause  abortion,  would 
have  been  not  only  immaterial  and  irrelevant,  but  its  admission 
would  have  been  error. 

Neither  can  it  be  said  that  the  crime  alleged  in  the  fourth 
count  is  contained  within  the  offense  charged  in  the  first 


PEOPLE  V.  AIKEN. 


351 


count,  and  in  the  complaint  and  warrant,  as  a  lesser  crime 
within  a  greater,  as  was  held  in  People  v.  Sioeenei/,  People  v. 
Sessions  and  People  v.  MoDowell,   heretofore  cited.      Man- 
slaughter is  charged  in  both — a  crime  of  the  same  degree  — 
but  growing  out  of  different  facts,  circumstances  and  condi- 
tions, and  totally  different  in  the  means  or  methods  causing 
the  death.     The  one  is  the  direct  criminal  act  against  which 
the  statute  has  set  its  bar  and  denominated  manslaughter. 
The  other  is  the  omission  to  perform  a  duty,  Avhich  omission, 
death  resulting,  the  common  law  has  made  manslaughter  as 
the  penalty  of  the  negligence  which  thus  becomes  criminal. 
But  whether  I  am  right  or  not  in  the  opinion  that,  if  the  sec- 
ond and  third  counts  were  allowed  to  stand,  the  fourth  should 
have  been  quashed,  it  seems  absolutely  certain  that  the  prose- 
cutor sliould  have  been  called  upon  by  the  court  to  elect  under 
which  theory  he  would  ask  the  conviction  of  the  respondent. 
Tiie  counsel  for  respondent  requested  the  court  to  instruct  the 
jury  tiuit  no  conviction  could  be  had  under  the  fourth  count, 
wiiich  retiuest  was  denied,  and  the  case  virtually  submitted 
upon  the  three  last  counts.     The  prosecution  were  permitted 
to  argue  both  theories  to  the  jury:  First,  that  he  was  guilty 
of  committing  abortion;   and  second,  that  ho  was  guilty  of 
criminal  neglect  in  his  ctu'e  of  the  siek  girl  after  the  miscar- 
riage.   Under  the  general  verdict  he  was  found  guilty  upon  all 
the  counts.    It  was  not  pointed  out  to  tlie  jury  tliat  they  might 
acquit  upon  the  second  and  third,  and  find  him  guilty  upon 
the  fourth,  or  vice  versa.     Therefore  it  may  be  possible  that  a 
portion  of  the  jury  based  their  verdict  upon  the  second  and 
third  counts  exclusively,  and  iinother  portion  upon  tiie  fourth 
alone.     There  can  be  no  safety  in  such  a   practice  as  tliis. 
They  were  not  instructed  tliat,  if  they  failed  to  lind  liim  guilty 
under  the  fourth  or  any  count.. tliey  must  acquit  upon  that 
count,  or  that  it  was  necessary  to  lind  hiui  guilty  of  all  the 
counts  in  order  to  bring  in  a  general  verdict  against  Lim.    And 
no  one  can  know  of  what  [)irticular  crime  of  the  two  he  was 
convicted. 

It  is  s.iid  in  People  v.  JfcKinnei/,  10  Mich.,  O-t,  95,  that  where 
several  offenses  are  charged,  distinct  in  point  of  law,  and  the 
trial  of  these  several  offenses  would  involve  the  proof  of  sub- 
stantially ditferent  transactions,  and  thereby  tend  to  confuse 


352 


AMERICAN  CRIMINAL  REPORTS. 


■  ■  ■'■■M 


the  defendant  in  his  defense,  or  deprive  him  of  any  substantial 
right,  the  court  shoukl  either  quash  or  coinjiel  the  ])rosecutor 
to  elect  which  offense  he  will  ask  a  conviction  upon.  P>ut 
when  the  several  offenses  charged,  though  distinct  in  point  of 
law,  yet  spring  out  of  substantially  the  same  transaction,  or 
are  so  connected  in  their  facts  as  to  make  substantially  parts 
of  the  same  transaction,  or  connected  series  of  facts,  the  de- 
fendant nannot  he  prfjiuJlced  in  his  defense  by  the  joinder,  and 
the  court  will  neitiier  quash  nor  compel  an  election.  "  In  tiio 
present  case  the  information  charges  apparently  several  of- 
fenses of  the  same  kind,  and,  if  the  evidence  related  to  several 
substantially  dilferent,  distinct  transactions,  it  would  have  been 
a  proper  case  for  putting  the  prosecutor  to  his  election.'' 
People  V.  MeK'nincii^  10  Midi.,  95,  There  were  in  this  infor- 
mation in  the  case  at  bar  two  distinct  and  separate  offenses 
charged  upon  dilferent  days,  upon  either  of  which,  standing 
alone,  the  rosi)oudent  might  have  been  ao(jiiitted  or  the  jury 
have  failed  to  convict  by  a  disagieement.  The  second  and 
third  counts  Charlie  the  means  of  abortion  as  bein<^  used  on  tlio 
19th  of  February,  or  at  least  before  the  delivery  of  tin.  ciiild 
on  the  21st,  while  the  criminal  neglect  averred  in  the  fourth 
count  is  alleged  to  have  taken  j)lace  on  the  21st,  aiul  after  the 
birth  or  expulsioii  of  \\\Q,fatas.  IJa  had  no  means  of  knowing 
upon  which  charge  the  prosecutor  relied,  and  the  court,  at  the 
close  of  the  testimony,  refused  to  compel  any  election.  It  fol- 
lows, then,  that  the  jury  may  have  agreed  upon  a  general  ver- 
dict of  guilty,  or  at  least  they  were  permitted  so  to  do  while 
yet  unable  to  agree  upon  either  one  of  the  counts.  Tudhe  r. 
City  of  Saijliuiio,  43  Mich.,  04;  Hamilton  v.  I^coph,  2'.»  Mich., 
173,  177,  178. 

The  true  and  onl}''  just  rule  as  regards  the  joinder  of  cinmts 
in  an  information  or  indictment  seems  to  ()e,  if  the  different 
counts  are  drawn  and  used  with  a  view  to  one  and  the  same 
transaction,  so  that  one  of  them,  upon  the  trial,  may  be  found 
to  meet  the  evidence,  tiie  court  will  not  interfere  with  tlie  |)ro- 
ceeding,  as  such  an  object  is  a  legitimate  one.  It  is  a  proceed- 
ing calculated  to  promote  justice,  and  cannot  confuse  oi- 
prejudice  the  defense  of  the  accused.  But  when  the  object  and 
purpose  is  apparent  to  prosecute  the  resi)()ndent,  and  such  is 
the  logical  effect,  for  separate  felonies  by  means  of  one  infer- 


PEOPLE  r.  AIKEN. 


353 


mation  or  indictu:cnt,  the  court  will  not  permit  it  to  be  done. 
The  ])rosocutor  has  i.o  rif^ht  to  do  this,  us  its  injustice  and  prej- 
udice to  the  accused  overbahtncesall  possible  benefits  to  be  de- 
rived to  the  public  from  sucli  a  practice.  See  1  Bish.  Crira. 
Proc,  §^  '205-213,  inclusive;  Mai/o  v.  State,  30  Ala.,  32;  Shtfe  v. 
Smith,  8  lilackf.,  48L);  Sarah  v.  State,  28  Miss.,  207;  McGt'eyg 
V.  State,  4  Elackf.,  101,  103:  liakei'  r.  State,  4  Arlc.  50;  Kane 
V.  People,  8  Wend.,  203;  PcoiAe  v.  Pi/nders,  12  AVend.,  425; 
State  V.  jYdson,  8  N.  PL,  103;  Slate  t\  Flije,  2G  Me.,  312;  State 
V.  Fowl  r,  8  Fost.,  lS-1;  BaUey  v.  State,  4  Ohio  St.,  440;  I\oj)le 
V.  Austin,  1  Farker,  Crim.  R.,  154;  Reg.  v.  Trneman,  8  Car.  & 
P.,  727;  People  v.  Jl-Jlilhin,  52  Mich.,  G27,  300;  People  v. 
Jones,  24  Mich.,  215;  INIaxw.  Crim.  Proc,  53;  Com.  v.  Sullivan, 
104  Mass.,  552;  Bainhridge  v.  State,  30  Ohio  St.,  204;  State  v. 
Uenrj/,  59  Iowa,  3D1  (13  X.  W.  Rep.,  343);  Hamilton  v.  People, 
29  Mich.,  173-177.  See,  also,  Jlurpht/  v.  People,  4  Am.  Cr.  R., 
323  and  note. 

Tested  by  this  rule  it  is  apparent  that  the  respondent  in  the 
case  at  bar  has  not  been  fairly  tried.  The  question  was  raised 
upon  the  trial  in  a  variety  of  ways,  and  numerous  endeavors 
made  by  his  counsel  to  prevent  his  being  tried  and  convicted 
for  these  separate  offenses  under  one  information,  but  m  vain. 
Tlie  evidence  tending-  to  show  that  he  committed  an  abortion 
upon  this  girl  in  his  olllce  Ijcforc  she  over  went  to  the  house  of 
Mrs.  Sleight,  and  that  he  gave  her  a.  jlack  medicine,"  for  the 
same  purpose,  after  she  arrived  at  ^^rs.  Sleight's,  and  before 
the  delivery  of  her  child,  and  which  medicine,  it  being  in  a 
bottle,  lie  took  away,  was  perniittcNl  to  l,o  used  toconvict  him, 
under  the  fourth  count,  of  having  criminally  caused  her  death 
by  neglect  in^•  and  refusiui;-  to  take  proper  care  of  her  after  the 
child  was  born;  and,  on  tl.o  other  hand,  tlie  evidence  tending 
to  show  that  ho  «»>glected  her  after  the  child  was  born  was  al- 
lowed to  bo  used  to  convict  him,  under  the  second  and  third 
counts,  of  having  caused  her  ih'ath  by  abortion  by  medicines, 
drugs,  or  instrunuiut  administered  or  used  previous  to  the  date 
of  the  expulsion  of  the/'*'/'^v.  Thus  the  evidence  legitimately 
tending  to  show  one  crime  was  also  illegally  used  to  convict 
the  respondent  of  another  oll'cnse  which  it  had  no  tendency  to 
prove,  and  vice  versa.  I  cannot  approve  of  this  course  of  pro- 
cedure in  a  criminal  case  of  this  magnitude,  nor  can  1  find  any 
Vol.  VII  -  23 


354 


AMERICAN  CRIMINAL  REPORTS. 


^it  t:^' 


•<  J  ' 


reputable  autliority  that  sustains  it.  The  two  offenses  chargeil 
diti  not  rohite  to  one  and  the  same  transaction,  nor  were  tiiese 
counts  framed  and  used  as  different  ways  of  cliarging  the  sumo 
offense.  One  was  a  statutory  manslaugliter  created  by  tlie 
legislature,  and  unknown  to  the  common  law,  and  the  other 
manslaughter  by  the  common  law,  and  not  the  creation  of  the 
statute.  Nor  is  this  all.  The  two  alleged  offenses  are  as  dif- 
ferent in  their  nature  and  the  means  of  bringing  about  the 
death  as  the}'  well  can  be,  and  one  is  radically  inconsistent 
with  the  other.  He  could  not  bo  guilty  of  both  at  the  same 
time  and  with  the  same  person.  If  tiie  drugs  he  ailministcrod 
or  the  "mortal  bruises  and  wounds"  ho  gave  her  caused  her 
death,  as  stated  in  the  second  and  third  counts,  his  neglect 
after  the  21st  of  February  did  not  kill  her;  and,  if  her  death 
was  caused  by  neglect  after  such  dale,  then  the  drugs  and 
bruises  given  before  that  time  did  not  dostro\'  her. 

But  I  will  not  pursue  the  matter  further.  It  seems  to  me 
unanswerable  that  no  man  should  be  prejudiced  in  this  mau: 
ner  when  on  trial  for  a  capital  offense,  lie  has  a  right  to 
bo  warned  by  the  complaint  and  wan-ant  of  what  he  is  accused, 
and  ought  not  to  be  convicted  of  two  different  crimes  com- 
mitted at  different  times  under  one  information,  with  tlie  e vi- 
de i.!e  of  each  confounded  as  a  whole,  and  used  indiscriminately 
to  convict  him  of  both.  Such  a  proceeding  violates  every 
principle  of  justice  and  places  him  at  the  niercy  of  the  prose- 
cutor; and  as,  in  this  case,  evidence  not  competent  to  prove  one 
of  the  offenses,  but  admissible  as  to  the  other,  is  used  to  estab- 
lish both  crimes,  such  a  trial  must  necessarily  be  an  unfair  and 
illegal  one. 

It  is  also  complained  that  the  court,  against  the  repeated  ob- 
jection of  the  respondent's  counsel,  violated  the  method  of  pro- 
cedure in  the  introduction  of  testimony,  as  to  its  order,  pointed 
out  and  established  by  this  court  in  People  v.  Tlall,  48  Mich., 
485,  and  People  v.  3lillard,  53  Mich.,  07,  by  permitting  the 
prosecutor  to  show  facts  and  circumstances  tending  to  preju- 
dice the  respondent  before  the  corpus  delicti  \ii\s  established. 

The  first  witness  placed  upon  the  stand  was  John  Xoel,  the 
father  of  the  dead  girl.  He  testified  to  her  age  and  the  date 
of  her  death,  and  the  time  that  she  left  home  for  Grand  Rapids, 
and  that  she  was  then  pregnant,  and  to  some  other  thin(;s 


PEOPLE  V.  AIKEN. 


856 


which,  although  objected  to,  were  not  material  as  far  as  the 
order  of  proof  was  concerned.  He  also  testified  to  matters 
connectin;^  Dr.  Ailcen  with  tlie  care  and  cl)arge  of  the  girl, 
under  the  agreement  heretofore  spoken  of,  which,  strictly 
spealvlng,  ouglit  not  to  liave  been  permitted  at  tliat  time,  before 
any  of  the  facts  attending  tiie  girl's  sickness  and  deatli  had 
been  given.  13ut  we  do  not  think  any  great  harm  was  done, 
as  the  court,  before  the  examination  in  this  line  liad  proceeded 
to  any  great  length,  advised  tlie  prosecutor  that  ho  was  not 
pursuing  a  very  safe  course  under  tlie  rulings  of  tlie  supreme 
court.  The  prosecuting  attorney  thereupon  dismissed  the  wit- 
ness and  proceeded  to  examine  Drs.  De  Camp  and  Edie  as 
to  the  result  of  tlie  ])nst-mortem.  When  their  evidence  was 
concluded,  Mrs.  Anna  Sleight  was  called  as  a  witness.  She 
commenced  to  give  a  history  of  the  girPs  stay  in  the  house, 
commencing  witli  the  respondent's  contracting  for  lier  coming 
there.  Tliis  was  objected  to,  and  the  jirosecutor  was  asked  by 
defendant  a  counsel  if  he  was  tlirough  with  the  evidence  of  the 
corpus  delicti.  lie  answered  that  this  (the  evidence  of  the  two 
doctors)  was  all  tlie  testimony  the  prosecution  had  as  to  tho 
pod-nwrtcin,  but  they  were  not  through  as  yet  with  the  corpus 
delicti.  The  objection  was  then  reiterated;  defendant's  coun- 
sel stating  that  it  was  incompetent,  as  not  being  the  correct 
order  of  proof,  and  that  they  desired  to  have  the  testimony 
completed  upon  the  point  of  the  death  from  criminal  causes, 
so  that  a  motion  might  be  made  to  test  the  question  of  a  crim- 
inal death  being  established.  The  objection  was  overruled, 
and  Mrs.  Sleight  })ermitted  to  proceed.  The  witness  then  gave 
in  detail,  as  well  as  she  could,  the  story  of  the  girl's  sickness, 
her  attendance  received  and  medicines  taken,  the  delivery  of 
the  child,  and  all  the  subsequent  events  as  they  took  place  up 
to  the  hour  of  her  death.  There  was  no  error  in  tlie  admis- 
sion of  this  testimony.  The  evidence  of  the  physicians  tended 
to  show  that  the  death  of  this  girl  was  produced  by  abortion, 
and  it  was  competent,  as  tending  in  the  same  direction,  to  show 
the  illness  of  the  girl  from  its  commencement,  and  how  she 
came  to  be  at  this  house  where  she  died.  The  corpus  delicti 
was  not  only  to  bo  established  by  the  post-mortem^  but  also  by 
the  fact  of  her  pregnancy,  her  illness,  her  treatment,  and  by 
whom,  and  her  condition  generally  up  to  the  time  of  her  death. 


PIf 


356 


AMERICAN  CRIMINAL  REPORTS. 


.1;  t.%;-  -' 


.  f;ii  y 


A  history  of  her  illness  from  the  very  beginning  to  the  end,  in 
detail,  was  most  proper,  and  perfectly  legitimate  to  prove  tlie 
corpus  dciictl;  and  what  the  respondent  did  and  said  in  con- 
nection with  such  illness  while  in  the  house  attending  upon 
the  sick  girl  was  properly  a  part  and  parcel  of  such  history. 

In  People  v.  llall,  48  ]\Iich.,  485,  and  People  v.  Millard, 
53  Mich.,  (57,  to  which  we  are  cited,  the  testimony  hold  to  be 
improperly  admitted,  as  to  its  order,  was  evidence  of  the  re- 
spondent's illicit  relations  with  other  women,  and  not  con- 
nected with  the  illness  and  death  of  the  deceased.  In  those 
cases  the  improper  evidence  went  to  the  motive  of  the  accused, 
and  had  no  business  before  the  jury  until  the  criminal  death 
Avas  established.  Here  the  testimony  objected  to  appertained 
directly  to  the  cause  of  death,  and  was  manifestly  a  part  of 
the  main  case. 

On  Monday  nigiit,  two  days  and  one  night  after  the  birtli 
of  the  child,  the  girl  had  a  talk  with  Mrs.  Sleight,  who  was  at 
that  time  taking  care  of  her.  The  deceased  was  vomiting, 
and  said:  "Oh!  ain't  it  awful,  that  awful  medicine?"  Mi's. 
Sleight  replied:  "Yes.  What  made  you  take  itT'  And  tlio 
girl  thou  s:iid  she  was  persuaded  to  take  it;  tlie  doctor  was  to 
blame, —  Dr.  Aiken, —  and  that  she  was  not  to  blame  herself. 
Mrs.  Sleight  testified  that  the  medicine  she  was  talking  about 
was  a"  black  medicine  "  that  Dr.  Aiken  took  away  upon  Sunday 
morning,  and  tliat  the  decoasod  took  some  of  it  on  Saturday 
night.  The  prosecuting  attorney's  assistant,  Mr.  Fairliold, 
claimed  upon  the  argument,  as  appears  by  the  record,  that  this 
talk  of  the  girl  established  the  fact  that  the  abortion  was  pro- 
duced by  this  very  medicine  administered  by  the  respondent 
on  Saturday  evening.  It  is  insisted  that  this  statement  of  tlie 
girl  was  hearsa}'^,  the  narrative  of  a  past  transaction,  not  a 
part  of  the  res  gestw,  and  therefore  inadmissible.  We  do  not 
think  the  admission  of  this  testimony  can  be  sustained  on 
any  legal  grounds.  It  is  not  pretended  that  it  was  a  dying 
declaration,  and  it  was  not  a  part  of  the  res  gestoB.  An^'thing 
that  she  said  during  her  illness,  as  to  her  present  pain  or  suf- 
fering, might  properly  have  been  admitted  to  show  her  present 
condition,  and  her  symptoms  at  the  time  she  made  the  decla- 
ration; but  her  narration  of  what  the  respondent  had  said  or 
done  a  day  or  days  before  she  made  the  statement  was  purely 


PEOPLE  V.  AIKEN. 


857 


hearsay,  and  could  not  be  admitted  under  any  exception  to 
tho  general  rule  excludinj^  such  testimony.  It  is  evident  from 
the  record  of  tho  trial,  as  wo  havo  it  before  us,  that  this  state- 
ment of  tijo  deceased,  on  Monday  evening,  of  wiuit  took  jjlaco 
on  Saturday  evening,  was  used  with  the  most  damaging  etfect 
against  tlie  respondent.  There  was  no  possible  way  of  disput- 
ing it,  and  it  was  error  to  receive  it. 

Several  assignments  of  errors  are  raised  upon  hypothetical 
(juestions  propounded  by  tlio  i)rosocutor  to  Drs.  Sligh,  Best, 
Do  Camp  and  Weston,  but  we  are  unable  to  find  anything  im- 
proper eitlier  in  tho  form  or  substance  of  such  cpiostions. 

Dr.  Maxim,  a  medical  expert  called  by  the  defense,  had  read 
the  testimony  of  Drs.  Edie  and  Do  Camp,  tlio  only  witnesses 
sworn  as  to  the  pod-niorteni  examination,  llo  was  asked  this 
question:  "  QacHtion.  Do  you  know  wliat  they  state  tliero  with 
reference  to  any  violence  having  been  used  upon  tho  body  of 
]\[ary  Noel,  or  marks  or  abrasions,  or  anything  of  the  kind? 
Ansioer.  I  do."  Also  this  furtlier  question:  "I  desire  to  ask 
you  now,  if,  in  your  opinion,  this  degenerated  condition  of  the 
OS  and  neck  of  tlie  womb,  as  described  by  Dr.  Do  Camp,  could 
exist  in  pof<t-niortem,  cases  when  no  interference  whatever  had 
been  made?"  Tins  was  objected  to  and  properly  excluded. 
Tlie  facts  as  testified  to  by  Dr.  De  Camp,  as  to  this  particular 
condition  of  the  parts  named,  should  have  been  stated  to  the 
witness;  otherwise  the  jury  could  not  know  upon  what  facts 
Dr.  Maxim  was  stating  his  opinion.  An  expert  can  never  be 
safely  permitted  to  state  that  he  has  read  or  heard  the  testi- 
mony of  a  witness  or  witnesses,  and  then  base  liis opinion  upon 
such  testimony,  without  stating  the  [)articular  points  of  the 
evidence  —  the  facts  —  upon  wliich  he  rests  his  conclusion. 
Tliere  is  no  reputable  authority  for  any  such  method  of  exam- 
ining an  ex|)ert  witness. 

Upon  cross-examination  tho  same  witness  was  asked  to  tell 
the  jury  how  he  differed  from  what  these  doctors  (De  Camp 
and  Edie)  said  about  the  case.  This  was  olijecteil  to  by  de- 
fendant's counsel,  and  it  is  contended  that,  if  the  direct  inquiry 
above  noticed  was  not  proper,  the  last  question  must  be  gov- 
erned by  the  same  rule.  Tiiis  is  not  i-o,  as  the  inquiry  itself 
called  upon  him  to  state  what  the  other  doctors  said,  and  to 
give  his  reasons,  if  any,  why  he  differed  from  them.     This  he 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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f^  J' 


358 


AMERICAN  CRIMINAL  REPORTS. 


m 


could  not  well  do  without  stating  the  specific  facts  upon  which 
his  reasons  were  based.  And,  in  answer  to  the  question,  it 
clearly  appeared  that  ho  could  not  state  wherein  ho  differed 
from  them  upon  the  state  of  facts  as  testified  to  by  them. 

It  is  also  claimed  that,  in  three  of  the  hj'potheticai  questions 
put  to  this  same  witness  by  the  prosecution  on  his  cross-exam- 
ination, matters  were  contained;  as  facts  upon  which  to  base 
said  question,  which  the  evidence  did  not  warrant  to  be  as- 
sumed. We  are  satisfied,  from  a  close  examination  of  the  rec- 
ord, that  there  was  evidence  from  which  it  might  legitimately 
Lave  been  inferred  that  the  deceased  was,  previous  to  her  com- 
ing to  Mrs.  Sleight's,  strong,  healthy  and  robust,  and  that 
spots  were  discovered,  upon  the  examination  of  the  womb, 
that  might  have  been  made  by  a  little  round  instrument.  It 
is  not  so  certain  about  there  being  any  testimony  that  "the 
blood  had  coagulated  "  upon  little  phices  at  the  neck  of  the 
womb,  but  thero  was  evidence  that  there  had  beea  what 
the  physicians  called  an  extravasation  of  blood  of  the  tissues, 
or  a  settling  of  blood  in  the  tissues,  causing  inflammation. 
This  was  jirobably  what  the  counsel  m'eant  to  refer  to,  and  we 
do  not  consider  the  discrepancy,  if  it  can  bo  called  any,  be- 
tween the  assumed  fact  and  the  one  in  evidence  at  all  material 
or  harmful  in  its  effect  upon  the  respondent's  rights. 

It  is  also  assigned  as  error  that  the  court  allowed  the  case 
to  go  to  the  jury  ui)on  any  of  the  counts  in  the  information, 
and  it  is  argued  that  thero  was  absolutely  no  evidence  tending 
to  show  that  the  respondent  was  guilty  of  either  of  the  offenses 
charged  against  him.  It  is  true  that  the  evidence  was  circum- 
stantial. There  was  no  testimony  of  any  eve-witness  who  saw 
an  instrument  used,  or  of  any  person  that  could  positively  and 
directly  siiow  that  any  medicine  or  drug  administered  by  the 
respondent  caused  the  unnatural  birth  of  the  cliild.  It  could 
not  well  be  expected  that  this  would  be  so.  Without  express- 
ing any  opinion  as  to  the  weight  of  the  evidence,  we  are  satis- 
fied that  there  was  sufficient  testimony  to  be  submitted  to  the 
jurjf  upon  the  second  and  third  counts,  and  that  we  should  not 
disturb  a  verdict  of  guilty  upon  either  one  of  them  if  other- 
wise a  fair  trial  had  been  afforded  the  defendant.  And  it  was 
proper  that  these  two  counts  should  bo  joined  in  the  informa- 
tion, as  they  manifestly  rolate<l  to  the  same  offense  and  the 


PEOPLE  V.  AIKEN. 


359 


same  transaction,  and  ono  was  varied  from  the  other  only  to 
meet  the  evidence  as  it  might  be  adduced. 

But  I  am  also  satislied  that  the  court  erred  in  submitting 
the  offense  charged  in  the  fourth  count  to  the  jury.  There 
was  absohitely  no  evidence  tending  to  show  any  criminal  neg- 
lect of  the  deceased  after  the  birth  of  the  child.  Not  only 
was  the  attendance  of  tiie  respondent  persistent  and  repeated, 
but  he  called  other  icputable  physicians,  one  of  whom  was 
there  at  least  three  times,  and  on  as  many  dilTerent  days,  and 
there  is  no  complaint  that  his  treatment  was  faulty,  or  that 
he  did  not  do  all  he  reasonably  could  to  save  her  life.  The 
time  when  ho  neglected  to  see  her,  when  called  for  by  Mrs. 
81eig'  1,  was  on  Saturday  evening,  before  the  miscarriage;  but 
the  neglect  averred  was  afterwards.  Nor  is  there  any  just 
reason  for  charging  him  with  the  coldness  of  the  room,  or  the 
condition  of  the  bed  or  bedding.  It  seems  that  no  one  found 
any  fault  with  the  arrangements  Mrs.  Sleight  had  made  for 
this  girl's  reception,  or  the  condition  of  the  room  she  was  in, 
except  the  respomlent  himself,  and  none  of  the  testimony  ex- 
cept his  own,  unless  it  be  by  inference,  would  warrant  any 
assertion  that  she  was  neglected  as  far  as  the  appointments  of 
the  room  were  concerned.  Mrs.  Sleight  herself,  a  witness  for 
the  prosecution,  testifies  that  it  was  comfortable  in  every 
respect,  and  Dr.  Sli.;lj,  who  was  also  attending  a  jiatient  there, 
and  had  been  doing  so  before  this  girl  came  there,  does  not 
find  an}^  fault  with  the  surroundings  of  the  deceased. 

And  yet  Mr.  Fairlleld  was  allowed  to  inflame  tlie  jury  as 
follows:  '*IIe  finds  her  upon  a  bed  of  straw;  he  leaves  her 
upon  a  bed  of  straw;  and  on  Saturday  niglit,  wlien  the  old 
man  Sligh  goes  to  him,  and  says  she  is  worse, —  'Come  up, 
doctor,  your  patient  is  worse,'  —  he  tells  yon,  in  his  own  tongue, 
upon  the  stand,  that  it  was  a  cold  night;  that  he  was  not  feel- 
ing very  well ;  and  he  did  not  go  up.  When  he  got  6100  of  this 
man's  monev  to  see  to  this  eldest  daughter,  that  she  should 
not  suffer,  he  lays  quietly  down  in  his  warm  bed,  and  then  and 
there  sleeps,  lets  her  lay  upon  a  bed  of  straw  while  her  life 
ebbs  away  by  the  blood  that  is  drawn  from  her  by  his  very 
acts,  perpetrated  upon  that  Friday  that  she  was  in  his  office. 
Then  talk  to  mo  about  not  being  criminally  negligent  in  tak- 
ing care  of  this  girl!     It  is  idle  and  nonsensical  to  talk  about 


ill 


360 


AMERICAN  CRIMINAL  REPORTS. 


it.  .  .  .  He  put  her  upon  a  bundle  of  straw,  and  let  her 
die  like  a  dog,  except  thiit  he  trotted  around  the  city,  and  got 
in  physicians  to  prescribe  from  time  to  time."  And  permitted 
to  use  plenty  of  language  of  like  import.  It  will  be  remem- 
bered that  the  Saturday  night  Mr.  Fairfield  refers  to  was  be- 
fore the  deliver}'^  of  the  fcetus,  and  the  respondent's  action  at 
that  time  is  not  informed  against  in  this  fourth  court. 

The  bundle  of  straw  referred  to  is  shown  b}'  the  testimony 
of  Mrs.  Sleight  and  others  to  have  been  a  straw-tick  newly 
filled.  Mr.  Sleight  and  wife  testify  that  there  was  a  stove  in 
an  adjoining  room  that  kept  this  room  sulliciently  warmed, 
and  there  is  no  evidence  that  it  did  not  do  so.  They  also  both 
testify  that  the  room  and  bed  were  comt'ortablo  in  every  re- 
spect, and  there  is  no  evidence  to  the  contrary  except  that  of 
Dr.  Best  and  the  respondent,  who  simply  testify  that  they 
suggested  changes  of  linen,  and  other  changes  at  times.  The 
mother  of  the  girl,  who  was  present  during  the  last  days  of 
the  daughter's  illness,  found  no  fault  whatever,  in  her  testi- 
mony, with  the  condition  of  the  room  or  bed,  or  the  care  that 
was  given  the  patient  by  the  respondent.  Iler  removal  was 
talked  of  by  Dr.  Best  and  the  respondent,  but  the  mother 
thought  she  could  not  be  safelv  carried  home.  The  criminal 
neglect  seems  to  have  been  more  in  the  imagination  of  the 
counsel  for  the  prosecution  than  in  fact.  There  is  no  war- 
rant in  the  evidence  for  any  such  charge,  at  least  after  the 
birth  of  the  child.  As  to  the  room  not  being  properly  heated, 
it  will  be  noted,  upon  an  examination  of  the  record,  that  the 
prosecuting  attorney  undertook  to  prove  by  Mrs.  Noel,  the 
mother  of  the  girl,  that  tiie  room  the  deceased  liad  been  ac- 
customed to  sleep  in  at  home  was  no  wanner  than  the  one 
she  occupied  at  Mrs.  Sleight's;  and  that  he  made  this  oifer, 
to  use  his  own  language,  for  the  purpose  of  proving  that 
the  chill  could  not  "  bo  accounted  for  bv  iroin"-  into  a  cold 
room;  simply  to  show  that  it  was  not  any  difi'erent  than  she 
had  been  accustomed  to."  This  proof  was  ruled  out  by  the 
court  as  immaterial.  And  yet  the  lack  of  warmth  in  this  room 
was  repeatedly  made  the  basis  of  an  argument  to  the  jury  to 
show  criminal  neglect  on  the  part  of  the  respondent  in  allow- 
ing her  to  remain  there. 

There  can  be  nothing  gained  in  the  end  by  an  overzealous 


PEOPLE  V.  AIKEN. 


361 


got 


and  unfair  perversion  of  facts  in  order  to  convict  an  accused 
person  of  a  crime  of  which  the  prosecutor  may  liave  good  rea- 
son to  believe  him  guilty,  and  which,  as  in  this  case,  may  be 
hard  to  establish  by  the  ordinary  and  established  methods  of 
procedure.  While  the  zeal  of  the  prosecutor  may  be  well  ex- 
cused, and  the  hot  and  bitter  language  that  comes  from  the 
heart,  involuntarily,  of  one  who  is  thoroughly  impressed  with 
the  heinousness  of  the  crime,  and  the  guilt  of  the  respondent, 
is  to  be  expected  in  such  cases,  it  is  nevertheless  the  duty  of 
the  court,  sitting  impartially  between  the  people  and  the  pris- 
oner, to  check  and  control  any  intemperance  of  zeal  or  lan- 
guage that  is  not  warranted  by  the  facts  and  circumstances 
shown  by  the  proofs.  If  this  is  not  done,  as  it  was  not  in  this 
case,  the  final  court  of  review,  removed  entirely  from  the  pas- 
sion and  prejudice  that  generally  surrounds  the  trial  in  the 
lower  courts  of  cases  of  this  nature,  will  see  to  it  that  the  in- 
justice is  corrected,  and  a  new  trial  granted.  By  this  permis- 
sion of  unfair  and  unjust  conduct  on  the  part  of  the  public 
prosecutor  or  his  assistants,  not  only  is  the  course  of  justice 
perverted,  but  added  cost  and  delay  are  the  natural  conse- 
quences of  the  attempt  of  the  court  of  last  resort  to  give  to 
every  citizen  accu,  ed  of  crime  the  protection  guaranteed  by  the 
constitution, —  a  fair  trial  before  an  impartial  jury.  It  must 
also  be  remembered  that,  however  heinous  the  crime,  and  how- 
ever dillicult  it  may  be  to  establish  it  by  the  usual  and  ap- 
proved means  of  procedure,  and  no  matter  how  firml}*  the 
public  prosecutor  and  the  community  at  large  may  be  satisfied 
of  the  guilt  of  the  accused,  and  even  though  in  fact  he  may  be 
guilty,  the  rules  and  methods  of  trial,  permitted  to  be  relaxed 
or  disregarded  in  his  particular  case,  with  perhaps  the  laudable 
object  and  desire  that  justice  may  be  done,  must  nevertheless, 
as  a  natural  consequence  of  the  ways  of  our  jurisprudence, 
appear  hereafter  as  so  relaxed  or  disregarded,  as  precedents  to 
be  used  against  all  persons  accused  of  crime,  to  vex  the  inno- 
cent as  well  as  the  guilty.  There  is  therefore  no  safety  and 
no  justice  in  allowing  the  supposed  merits  of  a  particular  case 
to  override  and  set  aside,  even  for  a  moment,  the  barriers  that 
our  constitution  and  laws  have  hedged  about  tlie  citizen  when 
ari'aigned  and  put  upon  trial  for  an  alleged  crime.  (See  Shular 
V.  State,  post,  579,  and  note.) 


i 


362 


AMERICAN  CRIMINAL  EEPQRT3. 


A  substantial  error  was  also  committed  by  tbo  couvt  in  his 
charge  to  the  jury,  as  to  the  proof  required  for  conviction.  Ilo 
instructetl  tiiem  as  follows:  "The  rule  requirin;^  the  jury  to 
bo  satislied  of  the  defendant's  guilt  beyond  a  reasonable  doubt 
in  order  to  warrant  a  conviction  does  not  ro(]uire  that  the  jury 
should  be  satislied  beyond  a  reasonable  douht  of  each  link  in 
the  chain  of  circumstances  relied  upon  to  establish  the  respond- 
ent's guilt.  It  is  sufiicient  if,  taking  the  testimony  altogether, 
the  jury  are  satisfied  beyond  a  reasonable  doubt  that  the  de- 
fendant is  guilty."  The  defendant's  counsel  hud  before  that 
requested  the  following  instruction,  which  was  refused:  "If 
the  jury  find  that  one  material  fact  proven  in  the  case  is  in- 
consistent within  the  theory  of  guilt,  as  claimed  by  the  people, 
then  the  rcsi)ondent  must  be  acquitted." 

There  is  some  authority  to  sustain  this  portion  of  the  charge 
of  the  court.  Sec  Sackett,  Instructions,  4S;';  Honker  v.  State, 
58  Ga.,  78;  Jarrell  v.  State,  58  Ind..  21i3;  State  v.  Ifatjdev,  45 
Iowa,  11.  The  latter  court  say:  "  It  is  not  a  reasonable  doubt 
of  any  one  proposition  of  fact  in  the  case  v.hich  entitles  to  an 
acquittal.  It  is  reasonable  doubt  of  guilt  arising  upon  a  consid- 
eration of  all  the  evidence  in  the  case." 

This  language  may  bo  and  probably  is  good  law  when  ap- 
plied to  any  proposition  of  fact  in  the  case,  the  establishment 
of  which  is  not  absolutely  necessary  i.  he  conviction  of  the 
accused.  I>ut  it  is  not  good  law,  in  reason  or  by  the  weight 
of  authority,  when  applied  to  a  fact  m;itci'ial  and  necessary  to 
establish  the  defendant's  guilt,  which,  in  tiie  common  wording 
of  the  books,  is  called  a  link  in  the  chain  of  circumstances. 
When  a  link  is  out  the  connection  of  the  chain  is  broken,  and 
the  chain  goes  no  further  than  to  the  missing  link.  To  com- 
plete the  ciiain  the  link  is  necessary,  and  it  may  be  in  the  cen- 
ter, and  the  most  important  of  all.  If  one  link  may  be  left 
out,  another  may,  and  in  the  end  the  jur}'^  may  be  authorized 
to  throw  a  few  established  links  together  in  a  heap,  and  guess 
that  the  chain  is  completed,  or  would  bo  if  the  other  links 
could  be  found. 

Reese,  J.,  in  speaking  of  a  similiar  charge  to  the  one  under 
consideration,  verv  aptly  savs:  "AVhat  is  meant  bv  the  word 
'link'  as  used  therein?  If  the  jury  were  given  to  understand 
that  it  referred  only  to  evidentiary  facts  which  might  add 


PEOPLE  V.  AIKEN. 


363 


Ills 
He 

y  to 

oubt 
jury 
<  in 
ond- 
her, 

(le- 
thal 
"If 

in- 
jple, 


force  or  weight  to  other  facts  from  which  the  inference  of 
guilt  could  be  drawn,  then  the  instruction  migiit  bo  said  to  be 
correct;  but  if,  by  the  use  of  the  word  'link,'  is  meant  such 
criminative  facts  which  of  themselves  form  the  chain  of  evi- 
dence from  which  the  inference  of  guilt  is  to  be  drawn,  iJien 
the  instruction  does  not  state  the  law  correctly.  No  chain  can 
be  stronger  than  its  weakest  link.  If  the  link  is  gone,  it  is  no 
longer  a  chain.  If  the  word  'link'  here  refers  to  those  cir- 
cunistances  which  are  essential  to  the  conclusion,  it  is  not  a 
correct  statement  of  the  law."  Marion  v.  SUite  (Neb.),  20 
N.  W.  Eep.,  294. 

In  the  case  before  us  the  court  refused  to  instruct  the  jury 
that  any  material  fact  proven  in  the  case  inconsistent  with 
the  theory  of  guilt  would  entitle  the  respondent  to  an  acquit- 
tal: and  *:'ic  charge  in  relation  to  the  links  in  the  chain,  taken 
in  connection  with  such  action,  must  have  given  tlie  jury  to 
understand  that  a  material  fact  might  be  wanting,  and  yet 
upon  the  whole  case  they  might  convict  the  respondent.  It 
has  always  been  held,  in  cases  of  purely  circumstantial  evi- 
dence, that  if  anv  of  the  facts  or  circumstances  establislied  be 
absolutely  inconsistent  Avith  the  hypothesis  of  guilt,  that 
hypothesis  cannot  be  true.  The  hypothesis  of  guilt  is  to  be 
compared  with  the  facts  proved  and  with  all  of  them.  Bur- 
rill,  Circ.  Ev.,  73G,  737;  AVhart.  Crim.  Ev.  (9th  ed.),  §  18; 
Wills,  Circ.  Ev.  (3d  ed.),  17.  The  verdict  of  guilty  in  a  crimi- 
nal case  resting  upon  circumstantial  evidence  is  built  upon  a 
series  of  fact  connected  logically  together,  and  one  fact  suc- 
ceeding another  in  a  certain  order;  one  fact  resting  or  de- 
pending upon  another  as  a  result  of  the  proceeding.  These 
material  and  essential  facts  necessary  to  convict,  following 
one  another,  and  each  adding  strength  and  conviction  to  the 
other  and  the  A\hole,  and  which,  as  a  whole,  complete  a  per- 
fect and  irresistible  chain,  must  each  and  every  one  be  estab- 
lished and  proven.  And  who  can  say  that  this  chain,  so  formed, 
is  a  perfect  and  complete  chain  to  a  moral  certainty,  or  beyond 
a  reasonable  doubt,  if  there  be  a  want  of  such  moral  certainty 
or  a  reasonable  doubt  as  to  the  existence  of  one  of  those  links, 
without  which  the  chain  is  broken  and  incomolete.  Each 
necessary  link,  each  and  every  material  and  necessary  fact, 
upon  which  a  conviction  depends,  must  be  proven  beyond  a 


u 


ifi 


364 


AMERICAN  CRIMINAL  REPORTS. 


reasonable  doubt.  People  v.  Fairchild,  48  Midi.,  37;  Burrill, 
Circ.  Ev.,  733,  730;  Covi.  v.  Webstet',  5  Cush.,  290,  313,317, 
318;  Walbrkliie  v.  State,  13  Neb.,  230;  People  v.  Guullcl,  100 
N.  Y.,  503;  Jifesder  v.  People,  117  111.,  422;  1  Starkie,  Ev., 
502;  3  Piiil.  Ev.  (Cow.  &  II.  notes),  472,  note  2SS. 

The  charge  of  the  court,  except  as  heretofore  noted,  cannot 
be  complained  of.  We  do  not  think  that  any  matter  of  fact 
was  incorrectly  stated  therein,  or  that  anything  was  taken  for 
granted  by  the  court  upon  which  there  could  justly  be  any 
dispute.  It  must  be  conceded  from  the  evidence,  wo  think, 
that  the  deceased,  \\\\v.\\  she  came  to  Grand  Kapids,  was  preg- 
nant with  a  (juick  child. 

It  is  assigneil  as  error  that  the  court  said  to  the  jury  that 
there  was  no  dispute  that  there  was  an  abortion  from  which 
Mary  Koel  died.  It  is  evident,  however,  that  in  the  use  of  the 
word  "abortion"'  the  court  did  not  mean  a  criminal  act  caus- 
ing an  untimely  delivery,  but  a  miscarriage  from  some  cause, 
either  criminal  or  accidental.  In  fact,  ho  informs  the  jury 
that  he  called  it  an  abortion  because  the  child  had  taken  on 
the  principle  of  life,  and  he  claimed  that  the  dill'erence  be- 
tween abortion  and  miscarriage  was  that  the  first  term  was 
used  when  the  child  had  become  quickened  with  life,  and  the 
latter  when  the/te^»*  had  not  taken  on  life.  From  the  whole 
charge  the  jury  must  have  understood,  as  they  were  ])lainly 
informed,  that  the  fact  of  a  criminal  abortion  was  not  ad- 
mitted, and  that  ihay  nxust  find  such  criminal  abortion  by  the 
act  or  means  of  the  respondent  in  order  to  convict  him. 

I  am  unable  to  lind  any  other  error  in  the  proceedings  than 
those  above  noticed.  For  these  a  new  trial  must  be  granted. 
Let  it  be  certilied  accordingly  to  the  superior  court  for  the 
city  of  Grand  liapids. 

Campijell,  C.  J.,  and  Champlin,  J.,  concurred. 

Sherwood,  J.    I  concur  in  the  result. 

Note. —  Qualification  of  medical  expert. —  In  Wisconsin  it  is  held  that  a 
medical  man  will  not  be  allowed  to  give  his  opinion  as  an  expert  unless  ho 
has  had  personal  experience  in  respect  to  the  niatter  in  controversy.  On  a 
trial  for  murdering  by  [(oisoning,  a  medical  witness  who  was  thirteen  years 
in  practice,  but  who  had  never  seen  a  case  of  arsenical  poisoning  and  never 
treated  one,  or  seen  one  in  his  practice,  and  all  he  knows  about  it,  in  rela- 


PEOPLE  V.  AIKEN. 


365 


rn'll, 

317, 

100 

Ev.. 


niiot 
fact 
iov 

"y 

ink, 


t'lon  to  the  effects  of  nn  irritant  poison,  was  what  he  got  from  the  books 
anil  what  he  was  taught  at  the  medical  college,  was  held  disqualified  to 
testify  as  an  expert.  In  reviewing  the  case  the  court  says:  "Neither  Dr. 
Munro  nor  Dr.  Olmstead  had  ever  seen  a  case,  or  had  any  experience  wliat- 
ever  on  tlie  suhjectof  arsenical  poisoning,  and  all  that  either  of  tliem  knew 
upon  the  subject  was  derived  from  medical  or  scientific  books  and  medical 
instruction.  In  receiving  their  testimony  the  court  committed  and  re- 
peated the  very  error  by  reason  of  which  the  judgment  in  the  case  of  Boyle 
V.  State,  57  Wis.,  472,  was  reversed.  In  that  case  Dr.  Cody  was  allowed  to 
testify  as  to  what  medical  boo'«  and  authorities  said  upon  the  subject  of 
'strnngulation'  and  to  give  an  opinion  of  its  fatal  eifect  and  consequence, 
when  he  had  testified  thac  he  had  never  seen  a  case  of  '  strangulation,' 
and  that  he  did  not  know  by  experience  of  it  ami  had  no  personal  knowl- 
edge on  the  subject.  That  case  was  unusually  well  considered,  and  the 
logic  of  the  opinion  is  perfectly  conclusive,  and  numerous  authorities  are 
cited  to  sustain  the  decision.  Many  cases  in  this  state  and  elsewhere  are  cited 
to  show  that  medical  works  .^nd  authorities  could  not  be  read  in  evidence, 
and  Mr.  Justice  Taylor  well  said :  '  Certainly,  if  the  book  itself  cannot  be  read 
in  evidence  to  the  jury,  the  witness  cannot  be  permitted  to  give  extracts 
from  it  as  evidence,  depending  upon  his  memory  for  their  correctness. 
The  palpable  error  in  permitting  Dr.  Cody  to  testify  is  apparent  from  the 
fa(;t  that  he  testified  on  the  stand  that  he  had  no  personal  knowledge  on 
the  subject  he  was  testifying  about.  He  says:  'I  have  not  seen  a  case  of 
strangulation,  and  do  not  know  by  experience.'  The  testimony  of  such 
medical  witnesses  is  at  best  merely  hearsay, —  what  medical  books  and  teach- 
ers taught  or  told  them,  repeated  from  memory.  The  learned  counsel  of  the 
state  asks  this  court  to  review  and  overrule  that  case  as  not  supported  by 
authority.  But  it  is  supported  by  autliority  and  equally  by  reason.  The 
decision  was  nia<le  deliberately,  and  we  can  see  no  reason  for  revising  or 
chim:j;ing  it."    Soquet  v.  State,  72  "Wis.,  659. 

Medical  e.rpert  —  Opinion  as  to  merits  of  text-books. —  A  medical  expert 
testifying  in  a  criminal  trial  was  asked  whether  "Maudsley's  Responsi- 
bility in  Mental  Diseases  "  was  a  standard  work.  The  question  was  asked 
for  the  purpose  of  showing  the  familiarity  of  witness  with  authors  upon 
that  subject.  Held,  that  the  question  was  properly  excluded  on  the  ground 
that  the  opinion  of  the  witness  as  to  the  merits  and  standing  of  the  work 
would  not  tend  to  prove  such  familiarity.    People  v.  Stitton,  73  Cal.,  243. 

Hypothetical  questions  —  Cross-examination — A  medical  expert,  on 
cross-examination,  may  be  asked  hypothetical  questions  bearing  upon  the 
sanity  of  defendant,  and  based  on  a  portion  of  the  evidence,  for  the  pur- 
pose of  testing  his  competency  as  an  expert.    Ibid, 


iV,. 


^! 


366 


¥m" 


AMEMCAN  CRIMINAL  EEPORia 


State  v.  Johnson. 


k(80  S.  C,  153.) 

Manslaughter:  Dying  declaration  a. 

Dying  declarations  —  Fear  of  death. —  No  set  form  of  words  should 
be  required  in  a  dyin^  declaration  to  sliow  tliat  the  declarant  was 
under  a  belief  of  speedily  impending  death.  The  court  must  draw  a 
rational  conclusion  from  all  that  was  said,  taken  in  connection  with 
such  surrounding;  circumstances  as  must  have  been  known  to  the  de- 
clarant, as  to  whetlier  the  declarant  was  in  such  a  condition  of  mind 
as  would  render  his  declarations  competent. • 

Appeal  from  Circuit  Court,  Abbeville  CoHnt^^ 
Indictment  for  murder.    Conviction  of  manslaughter.    De- 
fendant appeals. 

Ilessrs.  T.  P.  Cothran  and  W.  C.  McGowaii,  for  appellant. 

Jas.  L.  Orr,  for  the  state. 

McIvER,  J.  Tlio  sole  question  presented  by  this  appeal  is 
as  to  the  competency  of  certain  testimony  received  as  the 
dying  declarations  of  the  deceased.  The  rules  in  regard  to 
such  testimony  are  well  settled:  (1)  That  death  must  be  im- 
minent at  the  time  the  declarations  in  question  are  made; 
(2)  that  the  declarant  must  be  so  fully  aware  of  this  as  to  be 
without  any  hope  of  life  {State  v.  Quick,  15  Rich.,  349;  State 
V.  McEvnu,  9  S.  C,  212;  State  v.  Gill,  U  S.  C,  413);  and  (3) 
that  the  "subject  of  the  charge"  must  be  the  death  of  the  de- 
clarant, and  the  circumstances  of  the  death  must  be  the  sub- 
ject of  the  declarations  {Slate  v.  Terrell,  12  Rich.,  321,  and  the 
authorities  there  cited).  In  this  case  there  can  be  no  doubt 
that  the  first  and  third  of  these  rules  were  fully  complied  with, 
because  it  appears  that  death  ensued  the  same  night,  or  very 
early  the  next  morning,  after  the  declarations  were  made,  and 
the  other  testimony  tended  to  show  that  the  deceased  was  in 
a  dying  condition  at  the  time  the  declarations  were  made,  and 
the  subject  of  the  declarations  was  as  to  the  manner  in  which 
the  shooting,  whereby  the  mortal  wound  was  inflicted,  was 
done.    It  is  earnestly  contended,  however,  that  the  second  rule 

1  See  note. 


STATE  V.  JOHNSON. 


307 


ihould 


De- 


was  not  complied  with,  in  that  it  did  not  appear  that  tho  de- 
ceased was  fully  conscious  of  his  impending  dissolution,  and 
without  any  hope  of  recovery. 

It  appears  that  the  deceased  was  shot  on  tho  20th  of  Sep- 
tember, 1880,  and  that  on  the  evening  of  the  next  day,  so  late 
that  it  became  necessary  to  procure  lights,  his  statement  as  to 
the  circumstances  under  which  ho  received  the  fatal  wound  was 
taken  down  in  writing  by  a  very  intelligent  trial  justice,  who 
testified  that  he  found  tho  deceased  "lying  on  a  bed  in  his 
house  in  a  weak  condition."  Again  the  witness  said  that  the 
deceased  was  "in  a  very  low  condition;"  that  the  deceased 
did  not  sign  the  declaration  because  he  was  unable  to  do  so. 
"They  held  the  light  very  close  to  him,  and  ho  said  that  ho 
could  not  see;  and  I  asked  him  to  try  and  sign  it,  and  I  put 
the  pencil  in  his  hand,  and  I  asked  him  if  he  could  feel  the 
pencil,  and  ho  said  he  could  not."  To  tho  question  of  the 
counsel  for  prisoner,  "  Didn't  he  have  the  pencil  in  his  hand?" 
the  reply  was,  "  Yes,  sir;  I  put  it  in  there,  but  he  said  ho  could 
not  feel  it.  He  didn't  make  his  mark,  No,  sir;  he  could  not 
take  hold  of  the  pencil,  and  he  could  not  make  tho  mark." 
The  declarations,  as  taken  down,  began  with  the  following 
question  from  the  trial  justice:  "Do  you  think  you  will  get 
well,  or  do  you  think  it  will  kill  you?"  To  which  the  answer 
was:  "I  don't  know.  I  don't  think  I  will  ever  get  well.  The 
doctor  don't  tell  me  much."  Then  folio «\'s  an  account  of  the 
details  of  the  conflict  with  the  prisoner,  in  the  course  of  which 
tho  deceased  received  the  fatal  wound,  which  it  is  unnecessary 
to  repeat  here. 

It  seems  to  us  that  this  question  and  answer  were  quite  suf- 
ficient to  show  that  the  deceased  had  no  hope  of  recovery  at 
the  time,  even  when  considered  apart  from  the  surrounding 
circumstances:  but,  when  looked  at  in  the  light  of  those  cir- 
cumstances, Ave  tliink  it  clear  that  all  the  requirf-uents  of  the 
rule  are  fully  met.  Here  was  a  man  lying  on  his  bed  "  in  a 
very  low  condition,"  sult'ering  from  a  wound  inflicted  with  a 
deadly  weapon,  in  close  eoiitlict,  which  very  speedily  proved 
to  be  mortal,  with  tho  film  of  death  then  probably  spreading 
over  his  eyes,  as  shown  by  his  inability  to  see,  though  the  light 
was  held  very  close  to  him,  and  with  the  numbness  of  death 
I  lien  probably  creeping  up<liis  e&tremities,  as  shown  by  his  in- 


^'ma 

1^5*5^ 

(f*->ti9nf9 

mi  ^ 

titSjN 

ply' 

^^i^i'' 

i^  JTranl 

ffittjj^ . 

t^ 

UMii 

%S^B 

Ktim 

'i^'ii 

i^'  ' 

X  iMSl 

Kbm< 

ii^im 

WVv  i 

'^Wi 

Wit'    '. 

'^'?9B 

1^ '  '  V  ^ 

'^m 

fcii'    ' 

i^H 

308 


AMERICAN  CRIMINAL  REPORTS. 


ability  to  feel  the  pencil  when  placed  in  his  hands;  and,  wlion 
asked  the  question  above  stated,  replying  to  tiio  last  part  of 
the  (jiieslion,  "  Do  you  think  it  will  kill  you?"  lirst,  as  was  vory 
natural  for  a  person  of  his  condition  to  do,  by  sayirifj;,  "I  don't 
know,"  as  of  course,  he  could  not  lnou\  and  then,  rocunln;;!,' 
to  the  other  branch  of  the  incpiiry,  suyino-:  •' I  don't  think  I 
will  over  get  well;  the  doctor  don't  tell  nio  mucli," — which 
was  in  effect  saying:  "  The  doctor  gives  me  no  hope,  and  1  do 
not  believe  I  will  recover."  When  it  is  ronieniberod  that  not 
a  word  was  said,  either  by  the  deceased  or  by  the  doctor,  or 
an}' one  else,  indicating  that  there  was  any  hope  for  tiie  re- 
covery of  deceased,  and  considering  the  ver}'  low  condition  in 
which  the  deceased  was,  of  which  he  was  nianifcstly  conscious, 
we  cannot  doubt  that  the  declarations  were  made  by  the  de- 
ceased under  a  belief  of  a  speedily  impending  deatli,  and  were 
therefore  competent  testimony  in  the  case.  AVe  are  aware 
that  cases  have  been  cited,  and  others  might  bo,  decided  else- 
where, in  which  the  courts  have  gone  to  extreme  lengths  in 
excluding  dying  declarations  as  not  coming  fully  up  to  thc! 
rule;  but  we  do  not  think  any  set  form  of  words  sliould  be 
required  to  show  that  the  declarant  was  in  such  a  condition  as 
to  render  his  declarations  conq)etent,  but  that  the  court  must 
draw  a  rational  conclusion  from  all  that  was  said,  taken  in 
connection  with  such  surrounding  circumstances  as  must  have 
been  known  to  the  declarant,  as  to  whether  or  not  the  declar- 
ant was  in  such  a  condition  of  mind  as  would  render  his  dec- 
larations competent.  None  of  the  cases  in  this  state  have 
gone  to  such  lengths  as  we  find  in  some  of  the  cases  elsewhere, 
and  we  are  not  disposed  to  follow  such  cases. 

This  case,  it  seems  to  us,  is  a  stronge-  case  than  that  of 
/State  V.  Xancc,  25  S.  C,  108,  in  which  the  declarations  were 
held  competent,  and  that  case  fully  supports  the  conclusion 
reached  here. 

The  judgment  of  this  court  is  that  the  judgment  of  the  cir- 
cuit court  be  affirmed. 

Simpson,  C.  J.,  and  McGowax,  J.,  concur. 

Note.— Seo  Reynolds  v.  State,  4  Am.  Cr.  R.,  153;  Payne  v.  State,  4  id., 
155,  and  note;  Railing  v.  Com.,  6  id.,  7,  and  note;  Statev.  Cantieny,  6  id., 
418,  and  note. 


wlion 
iin  of 

■s  \'(.'ry 
don't 


LTATE  V.  HAIR  360 


State  v.  Hair. 

(37Miim.,3jl.) 

Mayhem  :  Intent  may  be  prcnumed. 

1.  Mayhem  — Intent,  when  presumed.— In  a  prosocntion  for  maiming, 
untler  section  177,  Penal  Code,  tlie  injury  must  be  wilfully  inflicted, 
"with  tlie  intent  to  injure,  disfigure,  or  disnlile;"  but  the  "intent"  is 
to  be  presumed  from  the  act  of  maiming;,  iialess  'ho  <  mlrai.v  appears.' 

a.  Definition  of  intent,— Tho  "intent"  referred  to  in  tlio  Ktatuto  may 
bo  delimnl  to  bo  the  purpose  at  the  time  to  do,  wit  out  lawful  author- 
ity or  necessity,  that  which  the  stat'.Uo  forliids;  and  the  words  "in- 
tent to  injure"  refer  to  injuries  of  the  same  class  siieciiied  in  the 
statiite,  or  such  as  might  reasonably  be  exjjected  to  be  dangerous,  or 
result  in  serious  bodily  harm.' 

Appeal  from  District  Court,  ITennopia  County,  Youn^', 
Judge. 

Mows  E.  Chq^Pi  attorney-general,  for  the  state. 
Lane  <&  DoiUje  and  F.  li.  Doihje,  for  appellant. 

Vanderijuugii,  J.  There  are  but  two  assignments  of  error  on 
this  appeal:  Flrd,  that,  upon  tho  motion  for  a  nc.v  trial,  the 
court  erred  in  holding  that  the  evidence  was  sullicient  to  war- 
rant a  verdict  of  guilty;  and  second,  in  sustaining  the  instruc- 
tions given  on  the  trial  upon  the  question  of  intent. 

1.  The  evidence  of  ihe  witJiesses  on  the  part  of  the  state, 
including  the  complainant,  whose  c'edibility  was  for  the  jury, 
was  sulHcient  to  supjiort  the  verdict.  The  complaining  wit- 
ness testified  that  the  tlel'endant  threw  him  down,  and  kicked 
him  in  the  face  and  in  the  left  eye,  and  in  this  he  is  sustained 
by  other  testimony.  There  is  a  conllict  in  the  evidence  as  to 
the  circumstances  of  the  assault,  and  the  manner  in  which  the 
injury  complained  of  was  inflicted,  but  none  upon  the  question 
that  the  injury  which  resulted  in  the  loss  of  the  complainant's 
eye  was  caused  by  tlie  defendant,  or  that  such  act  was  inten- 
tionally committed.  The  evidence  is  undisputed  and  conclu- 
sive that  the  defendant  was  angr}',  and  tliat  he  had  cherished 
ill  feeling  against  th'3  complainant,  for  which  he  claims  to  have 
had  provocation,  and  that  there  were  angry  words  and  blows 


'  Si'c  note. 


Vol.  VII  — 24 


n 


\h- 


m^ 


370 


AMERICAN  CRIMINAL  REPORTS. 


?   i' 


Hf 

ill 

Hi 

'ti 

ir  *M 

r. '  ft 

I  dl 

hi 

L  ^H 

m 

1 

between  them.  But,  whatever  blame  may  attach  to  the  com- 
plainant in  the  premises,  it  is  plain  that  the  injury  hero  com- 
plained of  was  not  committed  by  defendant  in  self-dcfonsG> 
nor  is  it  claimed  to  have  been.  The  defendant  swears  that  he 
"tl)rew  him  down,"  and  when  he  got  up,  he  says,  "I  caught 
him,  and  threw  him  down  again;  struck  him  in  the  face  with 
my  fist.  Couldn't  get  much  of  a  chance  to  hit  him.  I  took 
ray  left  hand.  He  had  his  face  partly  on  the  sidewalk  while 
lying  on  the  left  side.  I  was  on  the  right  side,  and  struck  for 
the  left  side  of  his  head."  "  These  blows  he  got  while  lying 
on  the  ground  here  on  the  left  side."  Conceding  that  the  jury 
might  find  that  the  injur}'  resulted  from  these  blows  with  de- 
fendant's fist,  instead  of  a  kick  by  him  in  the  face  of  the  com- 
plainant, still  they  appear  to  have  been  wrongfully  and  inten- 
tionally given,  and,  in  the  absence  of  evidence  to  the  contrary, 
the  law  will  imply  the  unlawful  and  criminal  intent  to  inflict 
the  injury  resulting  therel'rom. 

The  offense  charged  is  delined  as  follows  in  the  Penal  Code, 
section  177:  "A  person  who  wilfully,  with  intent  to  commit  a 
felony,  or  to  injure,  disfigure  or  disable,  inflicts  upon  the  person 
of  another  an  injur}'  which  (1)  seriously  disligures  his  person 
by  any  mutilation  thereof,''  or  (2)  destroys  or  disables  an}' 
member  or  organ  of  his  body,  or  {?>)  seriously  diminishes  his 
physical  vigor  by  the  injury  of  any  memlxjr  cr  organ,  "is 
guilty  of  maiming.  .  .  .  The  iiiiliction  of  the  injury  is  pre- 
sumptive evidence  of  the  intent."  Sec.  isO.  "To  constitute 
maiming  it  is  immaterial  by  what  means  or  instrument,  or 
in  what  manner,  the  injury  was  inflicted."  It  will  be  observed 
that  the  language  is  "wilfully  inflicts  the  injury"  which  dis- 
figures or  disables.  Upon  the  evidence  there  can  be  no  doubt 
that  the  question  whetiier  the  defendant  wilfuhy  inflicted  the 
injury  which  destroyed  the  com[)lainant's  eye  was  for  the  jury; 
and  they  were  at  liberty  to  infer  the  unlawful  intent  from  the 
infliction  of  the  injury. 

2.  The  second  assignment  of  error  is  based  upon  an  excep- 
tion "  to  all  that  portion  of  the  charge  in  which  the  court 
instructs  the  jury  that  the  intention  is  i)resumed  from  the  in- 
fliction or  the  injury,  in  that  it  is  misleading,  and  not  a  full 
and  fair  exposition  of  the  law."  The  charge  of  the  court  was 
perhaps,  in  several  particulars,  not  strictly  accurate;  but  in 


STATE  V.  HAIR. 


371 


respect  to  the  legal  presumption  of  the  intent  from  the  inflic- 
tion of  the  injui'v,  as  applicable  to  this  case,  it  was  correct; 
and  the  inaccuracies  or  errors  in  the  charge  were  not  pointed 
out  or  reached  by  the  general  exception  to  that  portion  of  it 
relating  to  this  branch  of  the  case.  And  so,  also,  if  the  in- 
structions were  not  deemed  as  full  and  explicit  as  defendant 
desired,  he  should  ivave  asked  other  or  further  instructions. 

This  is  sutHcient  to  dispose  of  the  case  in  this  court.  But,  as 
the  code  has  wrought  a  material  change  in  the  laws  of  this 
state  upon  the  subject,  a  brief  discussion  of  some  of  the  pro- 
visions of  the  new  act  bearing  -on  this  case  may  not  be  im- 
proper. The  defendant's  principal  contention  is  that  the 
intent  to  disfigure,  disable,  etc.,  being  niiide  a  necessary  in- 
gredient of  the  offense,  should  be  distinctly  and  independently 
eliown  or  made  to  appear,  and  that  evidence  of  the  infliction 
of  the  injury  is  not  by  itself  suihcient.  In  this,  howevci',  he 
is  in  error.  The  legislnturc  were  not  content  to  leave  the 
courts  to  apply  the  ordinary'  rule  in  respect  to  legal  presump- 
tions in  such  cases,  but  has  especially  declared  and  empha- 
sized it  in  the  statute.  It  is  a  transcript  of  the  recent  Xew 
York  statute  on  the  same  subject.  The  law  as  it  previously 
stood  in  that  state  required  proof  of  premeditation.  Tul/i/  v. 
People^  07  N.  Y.,  15.  The  purpose  to  change  the  rule  is  clear. 
It  will  be  observed  that  the  words  "premeditation,"  'Mnali- 
iously"  or  "malice  aforethought"'  are  omitted.  The  object 
of  the  statute  was  to  throw  additional  safeguards  around  the 
person  of  the  citizen,  and  to  suppress  brutal  or  barbarous 
modes  of  assault  and  personal  injuries.  In  the  majority  of 
cases  maiming  is  not  done  upon  premeditation  and  in  cool 
blood,  but  in  sudden  rencounters.  The  (jfFensc  of  maiming 
may  therefore,  under  this  statute,  be  committed  in  the  heat  of 
passion  or  in  sudden  combat.  But,  while  the  statute  is  thus 
clear  and  specific  as  to  presumptive  evidence  of  the  intent 
therein  defined,  it  is  equally  clear  as  to  the  necessity  of  the 
existence  of  sucli  intent.  The  maiming  must  be  with  the  in- 
tent to  maim,  or,  more  accurately,  the  injury  must  bo  purposely 
(not  accidentally)  inflicted,  "  with  the  intent  to  commit  a  fel- 
ony, or  to  injure,  disfigure  or  disable;"  and  this  is  a  question 
for  the  jury.  The  offenso  may  be  committed  in  attempting 
or  while  intending  to  comniit  a  felony,  as  robbery,  murder, 


372 


AMERICAN  CRIMINAL  REPORTS. 


..■^m 


mi 


■'ii  .A 


I'  I 


etc.,  or  with  the  intent  to  disfigure  or  disable,  or  to  inflict  seri- 
ous bodily  injuries  to  the  person,  or  any  member  or  organ 
of  tbe  body.  It  is  obvious  that  the  term  "intent  to  injure,"  in 
the  connection  used,  is  intended  to  refer  to  personal  injuries  of 
the  same  general  class,  or  to  such  as  might  reasonably  be  ex- 
pected to  be  dangerous,  or  result  in  serious  bodily  harm,  and 
not  to  slight  injuries  or  assaults,  from  which  such  results  are 
not  naturally  or  reasonably  to  be  expected.  The  intent,  then, 
referred  to  in  the  statute,  may  be  the  purpose  and  disposition, 
at  the  time,  to  do,  without  lawful  authority  or  necessity,  that 
which  the  statute  forbids,  and  it  may  be  presumed  from  the 
infliction  of  the  injury.  Such  presumption  is  of  course  dispu- 
table. The  circumstances  attending  the  alleged  wrongful  act 
may  so  explain  it  as  to  leave  its  criminal  character  in  doubt, 
or  rebut  it  altogether;  and  the  defendant  may  show  that  it 
was  done  under  the  pressure  of  necessity,  while  lawfully  de- 
fending himself,  or  that  it  was  accidental,  or  not  within  the 
probable  consequences  of  what  he  intended  or  actually  at- 
tempted to  do.  /State  v.  Craivford,  2  Dev.,  425;  Com.  v.  Wehste/; 
5  Cush.,  295-305. 

Note.—  Wilfitlly  and  maliciovsly. —  In  lioicers  v.  State,  24  Tex,  App., 
542,  the  court  siiys:  To  constitute  tlie  offense  of  maiming  the  act  must  be 
done  both  wilfully  and  maliciously.  A  uilful  act  is  one  coniniitted  with 
an  evil  intent,  with  legal  malice,  without  reasonable  ground  for  believing 
the  act  to  be  lawful,  and  without  legal  justiflcation.  A  malicious  act  is  onu 
committed  in  a  state  of  mind  which  shows  a  heart  regardless  of  so(i;il  duty, 
and  fatally  bent  on  mischief;  a  wrongful  act  intentionally  done,  without 
legal  justification  or  excuse.  In  trials  for  this  offense  the  legal  significa- 
tion of  the  words  "  wilfully  "  and  "  maliciously  "  must  be  explained  to  the 
jury.    Willson,  Tex.  Crim.  Laws,  §S  870,  877. 


Crum  V.  State. 
(64  Miss.,  1.) 


MtTRDEB:  Malice — Wound  not  fatal  —  Subsequent  neglect  and  mismanage- 
ment. 


Death  caused  mediately  by  wound,  niMEDiATEt^Y  by  mismanaok- 
HENT. —  The  fact  that  death  ensues  from  a  wound  given  in  malice,  not 
in  its  nature  fatal,  but  which,  being  neglected  or  mismanaged,  causni 


CRUM  V.  STATE. 


873 


re,"  in 


death,  will  not  excuse  the  party  who  gave  it ;  but  he  will  be  held 
guilty  of  murder,  unless  it  clearly  appear  that  the  deceased's  own  neg- 
lect and  want  of  care,  and  not  the  wound  itself,  was  the  sole  cause  of 
his  death.  1 

Appeal  from  Circuit  Court,  Hinds  County ;  Hon.  T.  J.  Whar- 
ton, Judge. 
Indictment  for  murder. 

Wells  &  Williainson  and  D.  S.  Fearing,  for  appellant. 
T.  M.  Miller,  attorney-general,  for  the  state. 

Cooper,  C.  J.  It  appears  in  evidence  that  the  appellant,  on 
the  4th  day  of  July,  1884,  shot  one  Ford,  inflicting  upon  him 
a  very  dangerous  wound.  Ford  was  treated  by  a  physician  for 
some  days,  and  discharged  with  a  warning  from  the  physician 
that  his  condition  required  great  prudence  on  his  part.  Ford 
was  imprudent,  and  on  tlie  2d  of  September  died  from  inflam- 
mation of  the  bladder,  which  the  attending  physician  states 
was  sliown  by  a  pofst-niortem  examination  to  have  been  a  result 
of  the  wound.  On  the  trial  the  court,  at  the  instance  of  tl"* 
state's  attorney,  gave  two  cliarges  (the  first  and  third)  to 
which  exception  was  taken  by  the  accused.  It  is  onl}'  neces- 
sary to  state  tlie  third  instruction,  since  that  announced  the 
law  more  strongly  against  the  defendant  than  the  first.  It  is 
as  follows : 

"If  death  ensues  from  a  wound  given  in  malice,  but  not  in 
its  nature  mortal,  but  which  being  neglected  or  mismanaged 
the  party  dies,  this  will  not  excuse  the  party  who  gave  it,  but 
he  will  be  held  guilty  of  murder,  unless  it  clearly  and  certainly 
appears,  either  by  the  evidence  offered  on  the  behalf  of  the 
state  or  the  defendant,  that  the  deceased's  own  neglect  and 
want  of  care,  and  not  the  wound  itself,  was  the  sole  cause  of 
his  death;  for  if  the  wound  had  not  been  given  the  party  had 
not  died." 

In  McBeth  v.  State,  50  Miss.,  81,  an  instruction  practically 
the  same  as  the  one  here  given,  in  the  view  in  which  it  was 
considered  by  the  court,  was  declared  to  be  erroneous.  In  that 
case  the  facts,  as  given  by  the  court,  were  that  a  dangerous, 
but  not  necessarily  fatal,  wound  in  the  abdomen  had  been  in- 
flicted, the  cut  penetrating  so  deep  that  the  entrails  protruded. 

•  See  note. 


f  ! 


f 

hi 
h  - .' 


374 


AMERICAN  CRIMINAL  REPORTS. 


One  Patrick,  not  a  physiciian,  had  administered  chloroform, 
rephicod  the  bowels  and  sewed  up  the  wound.  The  piiysicimi 
who  subsequently  attended  the  wounded  man  testified  ihut 
Patrick's  treatment  was  not  good  surgery;  that  the  wounded 
man  died  about  sixty  hours  after  the  wound  was  inflicted,  as 
he  supposed,  from  inflammation  of  the  bowels;  that,  in  his 
opinion,  death  was  caused  by  the  wound;  and  that  wounds  in 
the  abdomen  were  dangerous  but  not  necessarily  fatal.  On 
these  facts  the  court  said :  ''  If  there  be  misgovernment  on  the 
part  of  the  medical  attendant,  from  ignorance  or  inattention, 
this  would  form  no  exculpation  if  the  wound  were  mortal 
(Archb.  Crim.  Pr.  &  PI.,  202);  but  if  the  wound  were  merely 
dangerous,  and  the  bad  treatment  the  |)roximate  and  immedi- 
ate cause  of  the  death,  the  result  would  bo  dilferent." 

Por  the  proposition  that  for  a  dangerous  wound,  resultinu' 
in  death  from  mismanagement,  the  party  inflicting  it  could 
not  be  held  liable  for  murder,  no  authority  is  cited,  either  by 
the  court  or  by  counsel  in  that  case;  nor  has  counsel  in  his 
brief  in  the  case  now  before  us  cited  one;  nor  have  our  own 
investigations  discovered  that  there  are  an}'.  On  the  contrary, 
the  decisions  appear  to  l)e  luiiform  and  numerous  in  support  of 
the  instruction  given  by  the  court  below,  whicli  is  almost  a 
literal  copy  of  the  law  as  given  by  Greenleaf  on  Evidence  (vol. 
3,  §  189).  AVe  have  examined  many  of  tlie  cases  cited  by 
Greenleaf  in  support  of  the  text,  and  others  may  be  found  in 
Roscoe's  Criminal  Evidence  (pp.  717-Tli)).  As  wo  have  said, 
they  support  the  instructions  given  in  this  case,  and,  so  far  as  we 
are  advised,  are  in  conflict  with  no  other  case  than  that  of 
MeBeth  V.  State.  The  principle  of  these  cases,  is  that  one  who 
maliciously  inflicts  a  serious  injury  upon  another,  from  which 
injury,  as  the  mediate  but  not  immediate  cause,  lie  dies,  is  re- 
sponsible for  the  death.  It  is  a  salutary  rule,  necessary  for 
the  protection  of  society  b}'  the  punishment  of  offenders,  and 
ought  not  to  be  departed  from. 

McBetk  V.  State  is  overruled  in  so  far  as  it  announces  a  dif- 
ferent rule,  and  the  judgment  of  the  lower  court  is  allirmed. 

NoTK. —  In  State  i\  lAituIgrnf,  y.>  Mo.,  97,  tlio  court  instructod  tlie  jury 
as  follows:  "  If  you  liolit^'i;  anil  tiiiil  from  thoovidi-niro  that  (U'fi'iKlaiit  felo- 
niously, wilfully,  ilL'libi'i-atfJy,  pronieililatL-iliy  ami  of  liis  malice  alort- 
tlioM,u,lit  .-'a  1  A:r.iio  Tisdi,  and  inlliuted  on  hor  a  danyi.'rous  wound  on  some 


CRUM  V.  STATE. 


375 


vital  part,  as  cliargeil  in  th»  indictment,  and  tliat  such  shooting  and  wound- 
ing caused  the  diiitli  of  said  Annie  Tiscii,  you  sliould  find  tlie  defendant 
guilty  of  murder  in  the  first  degree,  notwithstanding  you  may  also  believe 
and  find  tluit  unskilled  medical  treatment  aggravated  such  wound,  and  that 
deceased  might  have  lecovered  if  greater  care  and  skill  had  been  employed 
in  treating  her." 

The  court  in  its  approval  of  this  instruction  says:  It  is  argued  that  this 
instruction  denies  to  defendant  the  henelit  of  the  defense  that  the  deaUi 
of  deceased  was  produced  or  occasioned  by  other  causes  than  the  wound. 
AVe  are  unable  to  perceive  wherein  the  instruction  does  this.     On  the  con- 
trary, it  re(iuires  the  jury  to  find,  before  they  can  convi<;t  defendant,  that 
the  wound  waa  a  dangerous  one,  inflicted  on  some  vital  part  of  the  body, 
and  that  it  caused  the  death  of  deceased.     The  direction  (>f  the  instruction 
that,  if  they  su  found,  it  matters  not  that  they  might  also  believe  and  find 
that  unskilled  medical  treatment  aggravated-  such  wound,  and  that  de- 
ceased might  liave  lecovored  if  greater  care  and  skill  had  been  employed  iu 
treating  her,  linds  abundant   support  in   the  authorities.     In  section  139, 
3Greenl.  Ev.,  it  is  said  :  "  If  death  ensues  from  a  wound  given  in  malice,  but 
not  in  its  na''Me  mortal,  but  whid-.  being  neglected  or  mismanaged  the 
party  died,  this  will  not  excuse  the  prisoner  who  gave  it;  but  he  will  be 
guilty  of  the  munler,  unless  he  can  make  it  clearly  and  certainly  appear 
that  the  mallreatnient  of  the  wound,  or  his  own  misconduct,  and  not  tho 
wound  itself,  was  the  sole  cause  of  his  death,  for  if  the  wound  had  not  been 
given  the  parly  would  not  have  died."     So  in  2  Bish.  Crim.  Law  it  is  said 
in  section  lJo8  tlial  the  doctrine  is  esLublishtd  that  if  the  blow  caused  the 
death  it  is  sullit'icut,  though  the  individual  might  have  rt'covered  had  lie 
used  projier  care  hiiuself,  oi'  submitted  to  a  surgical  oj)eration  to  which  he 
refused  sidnnissjiiii,  or  had  the  surgeon  treateil  hiiii  dilTerently;  and  in  sec- 
tion (iilt)  it  is  said:  '•  la  law,  if  the  |)erson  dies  by  the  action  of  the  woui'd, 
and  by  the  medical  or  surgical  action,  jointly,  the  wound  must  clearly  be 
regarded  sulliciently  a  cause  of  the  death,  and  the  wound  need  not  I'veii  be 
a  concur)'ent  cause ;  much  less  iioetl  it  be  the  next  proximate,  for,  if  it  is  tho 
cause  of  the  cause,  no  more  is  re(|uired,"    In  the  well-considered  case  of 
Com.  r.  lldclatt,  2  Alien  (Mass.),  141,  .after  a  review  of  the  authorities  bear- 
ing upon  the  (|U('siion,  it  is  said:  "  The  well  established  ride  of  the  conunou 
law  would  seem  to  be  that  if  tho  wound  was  a  dangerous  wound,  that  is, 
calculated  lo  eiidan-cr  or  destroy  life,  and  death  ensued  tlicrefrorn,  it  is  suf- 
llcient  proof  of  the  olfense  of  nuu'der  or  manslaughter,  and  that  the  person 
who  inflicted  it  is  responsible,  though  it  api)ear  that  the  deceased  might 
have  recovered  if  lie  had  taken  j>roper  care  of  himself,  or  subnutted  to  a 
surgical  operation,  or  that  improper  or  unskilful  treatment  aggravated  tho 
wound  or  contributed  to  the  death,  or  that  death  was  innuediately  caused 
by  a  surgical  npiMalioii  rendered  necessary  by  the  condition  of  the  wound. 
The  principle  on  which  this  rule  is  founded  is  one  of  uiuversal  application 
and  lies  at  the  foundation  of  all  our  crinunal  jurisprudence.     It  is  that 
every  person  is  to  be  held  to  contemplate  and  b(;  responsible  for  the  natural 
ionsi(pience  of  liis  own  at-ta.     If  a  jierson  inlliets  a  Wtaind  with  a  deadly 
weapon  in  surji    injinufr  as  to  pe*  life  in  jeo[)ardy,  and  death  follows  as  a 
c  mseipieiicc  of  lliis  felonious  and  wicked  act,  it  iloes  not  alter  its  naturi'  or 
diminish  its  criininalily  to  |  rove  that  other  causes  c<.i-o|K'iiite.l  in  pii  ihn.Mi-;' 


l"fi 


1/ 


37C 


AMERICAN  CRIMINAL  REPORTS. 


the  fatal  result.  Indeed  it  may  be  said  that  neglect  of  the  wound,  or  its 
unskilful  and  improper  treatment,  which  were  of  themselves  consequences 
of  the  criminal  act  which  might  follow  in  any  case,  must  in  law  be  deemed 
to  have  been  among  those  which  were  in  contemplation  of  tiie  guilty  party 
and  for  which  he  is  to  be  held  responsible.  But  however  this  may  be,  it  is 
certain  that  the  rule  of  law  as  stated  in  the  authorities  cited  has  its  founda- 
tion in  a  wise  and  sound  policy.  A  different  doctrine  would  tend  to  give 
immunity  to  crime,  and  to  take  away  from  human  life  an  essential  and  sal- 
utary safeguard.  Amid  the  conflicting  theories  of  medical  men,  and  the 
uncertainties  attendant  on  the  treatment  of  bodily  ailments  and  injuries,  it 
would  be  easy  in  many  cases  of  homicide  to  raise  a  doubt  as  to  the  im- 
mediate cause  of  death,  and  thereby  to  open  a  wide  door  by  which  persons 
guilty  of  the  highest  crime  might  escape  conviction  and  punisliment." 

In  State  v.  Smith,  73  la.,  32,  the  evidence  tended  to  she  v  that  the  de- 
ceased came  to  her  death  by  a  combination  of  tliree  caus'  ,  one  of  whicli 
was  heart  trouble,  one  drunkenness  and  exposure,  and  one  the  assault  of 
the  defendant,  and  the  court  instructed  the  jury  upon  this  branch  of  the 
case  as  follows : 

"(8)  If,  at  the  time  and  place  charged,  the  defendant,  with  malice  afore- 
thought, either  express  or  implied,  assaulted  the  deceased  and  inflicted  upon 
her  wounds  and  bruises  which  produced  her  death,  or  contributed  to  her 
death,  then  he  is  guilty  of  murder  in  the  second  degree,  and  you  should  so 
find. 

"(9)  If  the  defendant,  with  malice  aforethought,  express  or  implied, 
kicked,  beat  or  struck  the  deceased,  thereby  inflicting  on  her  body  or  head 
or  face  any  wound  or  wounds,  or  bruise  or  bruises,  and  if  tlie  same  or  any 
of  the  same  caused  her  death,  or  contributed  to  and  hastened  her  death,  then 
defendant  is  guilty  of  muriier  in  the  second  degree,  and  you  should  so  And. 
Or  if  defendant,  vvith  malice  aforethought,  express  or  implied,  caught  the 
deceased  by  the  feet  or  legs  and  by  the  same  dragged  her  over  and  across  t'ue 
floor  of  the  house  to  the  door,  and  thrust  lier  out  upon  the  ground,  ini  • 
the  wet  and  mud  and  open  air,  and  such  treatment  caused  her  death,  o    : 
any  manner  contributed  to  and  hastened  it,  then  he  would  be  guilty  of  .ii' 
der  in  the  second  degree,  and  you  should  so  find.     In  other  word*, 
fendunt,  with  malice  aforethought,  either  express  or  implied,  inflicted  any 
of  the  injuries  as  charged,  upon  the  body  or  person  of  the  deceased,  and  the 
same  caused  her  death,  he  would  be  guilty  of  murder  in  the  second  degree, 
although  you  may  And  other  causes  contributed  thereto  also. 

"(10)  The  law  is  this:  If  one,  with  malice  aforethought,  either  express  or 
implied,  inflict  an  injury  upon  or  to  the  person  of  anotlier  which  causes 
'death,  and  which  death  would  not  then  have  occurred  but  for  such  injury 
80  inflicted,  the  person  inflicting  such  injury  is  guilty  of  murder  in  the  sec- 
ond degree ;  and  in  such  case  it  is  no  defense  if  another  cause  or  other 
causes  may  also  have  contributed  to  such  death.  And  in  this  case  if  defend- 
ant inflicted  any  of  the  injuries  as  charged  upon  the  body  or  person  of  the 
deceased,  and  if  but  for  the  same  she  would  not  have  died,  then  he  is  guilty 
of  murder  in  the  second  degree,  and  this  would  be  so  eveti  if  at  the  time  she 
was  affected  with  heart  disease,  or  affected  with  intoxication,  and  they  con- 
tributed also  to  her  death." 

In  sustaining  this  charge  the  court  says :  In  our  opinion  the  instructions 


STATE  V.  BALDWIN. 


377 


complained  of  are  correct.  It  surely  ought  not  to  be  the  law  that  because 
a  person  is  afflicted  with  a  mortal  malady,  from  which  he  inusit  soon  die, 
whetlier  his  ailment  is  caused  by  natural  or  artificial  causes,  another  may 
Ije  accused  for  acts  of  violence  which  hasten  or  contribute  to  or  cause  death 
sooner  than  it  would  otherwise  occur.  Life  at  best  is  but  of  short  duration, 
and  one  who  causes  death  ought  not  to  be  excused  for  his  act  because  his 
victim  was  soon  to  die  from  other  causes,  whatever  they  may  be,  and  in 
the  case  at  bar  we  think  the  jury  were  warranted  in  finding  that  the  vio- 
lence of  the  defendant  contributed  to  or  caused  or  accelerated  the  death  of 
his  wife. 


State  v.  Baldwin. 

(86  Kan.,  1.) 

Murder  :  Pi'actice  on  trial  —  Evidence  —  Theory  of  suicide  —  Opinion  based 
upon  appearances  —  Demeanor  of  prisoner  —  Experts  —  iJross-exami- 
nation  —  Instruction  defining  words,  motive,  etc. 

1.  SwEAUiNO  JURY  —  RECORD. —  It  is  highly  important  and  necessary  that 
the  oath  should  bo  administered  to  the  jury  in  a.  criminal  case  with 
due  solemnity,  in  tiie  presence  of  the  prisoner  and  before  the  court, 
ami  substantially  in  the  manner  prescribed  by  law;  but  it  is  no  part 
of  the  duty  of  the  clerk  to  place  on  the  record  the  formulary  of  words 
in  which  the  oath  is  couched. 

3.  Irreoularity  in  oath  —  Necessity  of  objecting.— Where  a  party 
desires  to  avail  himself  of  irregularity  in  administering  the  oath  to  the 
jury  the  attention  of  the  court  should  be  called  to  it  at  the  time  the 
oatli  is  taken. 

3.  Evidence  —  Theory  of  suicide.—  Where  there  are  some  circumstances 

whicli  suggest  that  a  person  charged  to  have  been  murdered  com- 
mitted suicide,  it  is  competent  for  the  prosecution,  for  the  purpose  of 
repelling  the  theory  of  suicide,  to  show  by  an  ordinary  witness  who 
was  intimate  with  Uie  deceased,  and  was  with  her  the  evening  before 
her  death,  that  she  was  then  in  good  spirits  and  appeared  to  be  happy. 

4.  Opinion  —  Facts  made  up  of  combination  of  appearances.—  Facts 

which  are  made  up  of  a  great  variety  of  circumstances  and  a  combina- 
tion of  appearances,  that  cannot  be  fully  described,  may  be  shown  by 
the  opinion  of  ordinarj'  witnesses,  whose  observation  is  such  as  to  jus- 
tify it. 

.">.  Demeanor  of  prisoner. —  The  demeanor  of  one  charged  with  crime, 
at  or  near  the  time  of  its  commission,  or  of  his  arrest  for  the  same, 
may  always  be  shown;  and  the  testimony  of  the  officer  who  sub- 
poenaed and  took  the  defendant  before  the  coroner's  jury,  that  "  he 
was  very  nervous  and  showed  a  great  deal  of  fear,"  was  admissible. 

6.  Experts  -  Wood-workers. —  A  panel  had  been  cut  and  taken  from 
the  outside  door  of  the  house  where  the  offense  was  committed ;  and 


i 


i 


, 


1  1), 
!l| 

Ml 


378 


AMERICAN  CRIMINAL  REPORTS. 


when  the  (Iffcntlant,  who  was  a  carpenter,  was  arrestoil,  a  knife  was 
found  on  his  jjorson.  Witnesses  wlio  are  sliilled  workers  in  wood  may 
Lo  called  to  show  that  in  their  opinion  the  panel  had  Ijeen  cut  out  witJi 
a  Ivnile;  that  the  hlade  of  defendant's  knife  exactly  fitted  tlie  i)lii(o 
wheie  the  panel  had  been  jiierced ;  that  it  had  been  cut  from  the  out- 
side hy  one  skilled  in  the  use  of  tools,  and  was  evidently  taken  out  by 
one  wiio  undi'rstood  the  construction  of  a  door. 

7.  WlTNKSS  —  CUOSS-EXAMIXATION  —  Pkkvious    statkmknt.—  Where   the 

defendant  proiluced  a  witness  who,  with  a  view  of  showing  the  c'.ui- 
Bcioiis  innocei\ce  of  the  defendant,  teslitied  what  his  cimdnct  an-l  .'p- 
pearance  wan  soon  after  the  death  of  his  sister,  it  was  proper  to  iniiuiro, 
on  cross-examination,  if  the  witness  had  not  stated  at  the  ])r('liiniiiary 
examination  that  the  conduct  of  the  defendant  impri'ssed  him  at  onco 
as  being  guilty  of  the  murder. 

8.  MlM()UANDi;ji— IXDIU'ENUENT  KICCOLLIX'TION.— A  witness  may  he  per- 

niil ted  to  refresh  his  memory  from  a  writing  or  memorandum  made 
by  himself  shortly  after  the  occuri-ence  of  tlie  fact  to  which  it  relates. 

9.  Scientific  uooics  —  ExrEUTS.— Medical  and  scientilic  hooks  cannot  hi' 

admitted  in  evidence  to  i)rove  the  declarations  or  opinions  which  tlicy 
contain;  but  a  witness  who  is  a  nu-dical  expert  is  not  conlini'd  wholly 
to  his  jiersonal  experience  in  the  treatinint  of  men,  luit  may  give  his 
opinions  formed,  in  [lart,  from  the  reading  of  boul;s  pre|)ared  l)y  jht- 
sons  of  acknowledj^ed  aliility. 

10.  iNSTitlcTioNS  —  I'oisoMNO. —  Tlio  court  charged  tlic  jury  that,  to  con- 

vict tile  defendant,  it  must  \w  shown  that  he  purposely  looli  tiie  lili- 
of  the  deceased  h}'  administering  poison  to  her.  A  nnu'der  that  is 
committed  hy  means  of  jioison  involves  and  presupposes  the  element 
of  malice,  ])remeditation  and  deliheratitm,  and  hence  it  was  neeillcss 
for  the  court  to  state  tiiat  tiiey  were  iireri'c]uisites  to  a  conviction. 

11.  CouuT  i)i:i''i.Nixo  WORDS. —  The  court  takes  jKitice  of  the  meaning  ami 

force  of  the  ordinary  words  of  our  language,  and  also  of  teolinicai 
words,  wb(>re  their  meaning  is  well  settled  hyconnnon  usage:  and  tlie 
court  may,  where  it  is  nec(>ssary,  deiine  and  explain  them  to  the, jury. 

12.  CllEoijoiviiiM  AS  A  poisox. —  As  the  legislature  has  iinlijislitd  .•mil  de- 

clared cidorofoini  to  be  a  virulent  poison,  by  a  law  which  all  are  pre- 
Binni'd  to  know,  it  w:;s  not  error  for  the  comt  to  say  to  tiie  .jury  tliat, 
"in  common  parlance,  chloroform  is  classed  among  the  poisons," 
when  he  couples  with  the  statement  the  direction  that  it  was  s.till  nec- 
essary ior  the  jury  to  tiiid  from  the  evidence  that  chloroform  is  a 
poison,  itefore  the  defendant  coidd  be  convicted. 

13.  IxsTULL'TioNs  AS  TO  MOTIVE. —  The  defendant  cauuot  be  heard  to  com- 

plain of  an  instruction  recjuested  by  himself;  and,  with  respect  to  mo- 
tive, it  was  not  error  for  the  coiut  to  instruct  that  defendant  should 
bo  judged  by  the  information  upon  which  lio  acted,  rather  thau  upon 
the  accuracy  of  liis  information. 

Appeal  from  Atchison  District  Court. 

rrost'ciitioii  Cor  imirdcr.    'J'riiil  at  the  Xoveinhcr  tonn,  188.5. 
The   iiirv   i'oiiiul    the  ilereiuhiiit,  William    llalihvin,  o'uiltv   of 


STATE  V.  BALDWIN. 


379 


murder  in  the  first  degree  as  charged  in  the  first  cou^t  of  the 
information.  The  court  overruled  the  defendant's  motici.sfor 
a  new  trial  and  in  arrest  of  judgment,  and  on  January  11, 
188(3,  sentenced  tlie  defendant  in  accordance  with  tlie  verdict. 
He  a|)i)eals.  The  opinion  contains  a  sutlicient  stalenicnt  of 
the  case. 

ir.  D.  Gilbert,  county  attorney,  for  the  state. 

C.  F.  Cochran  and  Kcered  tO  Waytjener,  for  appellant. 


JoiiNsox,  J.  William  IJaldwin  was  informed  against,  tried 
and  convicted  of  the  crime  of  murdering  his  sister,  ^[ary  Bald- 
win. The  infcjrmation  consisted  of  two  counts,  in  the  first  of 
which  it  was  charged  that  the  defendant,  on  or  about  the  8th 
day  of  July,  18S,"i,  administered  to  Mary  Ualdwin  an  anes- 
thetic, to  wit,  chloroform,  which  is  alleged  to  be  a  deadly 
])oison,  with  the  felonious  intent  to  kill  and  murder  her.  In 
the  second  count  tlie  charge  is  that  the  death  of  Mary  Bald- 
win was  occasioned  by  the  defendant  pressing  a  ])illow  on, 
over  and  against  her  mouth,  nose  and  face,  thereby  ])rovent- 
ing  respiration,  and  causing  death.  The  jury  found  him 
guilty  of  murder  in  the  first  degree,  under  the  first  count  of 
the  information,  and  ho  was  thereujK)n  sentenced  and  adjudged 
to  suffer  death.  From  that  sentcmce  and  judgment  he  appeals 
to  this  court.  In  the  elaborate?  brief  filed  by  his  counsel  there 
are  forty-seven  assignments  of  error,  many  of  which  were  not 
refei'r(;d  to  in  the  oral  agreement,  and  some  of  which  are  un- 
imi)ortant.  Tiie  alleged  errors  have  all  been  exiuuined,  and 
such  of  them  as  are  deemed  worthy  of  notice  will  be  consid- 
ered and  disposed  of  in  their  oi'derof  presentation  liere. 

1.  The  lirst  assignment  is  that  tlie  jury  were  not  duly  sworn. 
In  the  journal  entry  oi.  the  proceedings  at  the  opening  of  the 
trial  it  is  stated  that  the  parties  appeared,  and,  issue  being- 
joined  upon  a  plea  of  not  guilty,  a  jury  came  (naming  them), 
"twelve  good  and  lawful  men,  having  the  (lualilications  of 
jurors,  who,  being  duly  elected,  tried  and  sworn  well  and  truly 
to  try  the  issue  joined  herein,  peinling  the  introduction  of  tes- 
timony, the  court  adjouiMied  until  to-morrow  moi'iiing,"  etc. 
The  exact  form  of  the  oath  to  be  taken  by  the  jury  is  not  laid 
down  in  the  statute,  but,  with   respect  to  administering  the 


I 

'V 


880 


AMERICAN  CRIMINAL  REPORTS. 


\ 


I     '' 


oath,  it  is  provided  that  *'  the  jury  shall  be  sworn  to  well  and 
truly  try  the  matters  submitted  to  them  in  the  case  in  hearing 
and  a  true  verdict  give,  according  to  the  law  and  the  evidence.' 
Crim.  Code,  ^  208;  Civil  Code,  §  274. 

The  contention  of  the  defendant  is  that  the  record  under- 
takes to  set  out  the  oath  actually  administered  to  the  jury, 
and  that  as  it  omitted  the  essential  part  of  requiring  that  they 
should  a  true  verdict  give  according  to  the  law  and  evidence, 
the  judgment  should  bo  reversed.  It  is  highly  important  and 
necessary  that  the  oath  should  be  administered  with  due  so- 
lemnity, in  the  presence  of  the  prisoner  and  before,  the  court, 
substantially  in  the  manner  prescribed  by  law.  It  may  also 
be  conceded  that  the  record  should  show  that  the  jury  were 
sworn,  and,  when  the  record  does  purport  to  set  out  in  full 
the  form  of  the  oath  upon  which  the  verdict  is  based,  it  must 
be  in  substantial  compliance  with  law;  otiierwise  the  con- 
viction cannot  stand.  The  «ssumption  by  counsel  that  the 
oath  as  actually  administered  is  set  out  in  full  in  the  record,  it 
seems  to  us,  is  unwarranted.  "What  is  stated  in  the  record  is 
but  a  recital  by  the  clerk  of  the  fact  that  the  jury  were  sworn. 
The  swearing  was,  of  course,  done  orally  in  open  court;  and 
it  is  no  part  of  the  duty  of  the  clerk  to  place  on  the  rec- 
ord the  exact  formulary  of  words  in  which  the  oath  was 
couched.  lie  has  performed  his  duty  in  that  respect  when  he 
enters  the  fact  that  tlie  jury  was  duly  sworn,  and  when  that 
is  done  the  presumption  will  be  that  the  oath  was  correctly 
administered.  The  method  of  examining  the  jurors  as  to  their 
qualifications,  or  whether  the  oath  was  taken  by  them  while 
standing  with  uplifted  hands,  according  to  the  universal  prac- 
tice in  the  state,  or  otherwise,  is  not  stated.  In  making  men- 
tion of  the  impaneling  and  swearing  of  the  jury  there  is  no 
description  of  the  parties  between  whom  the  jury  are  to  de- 
cide, nor,  indeed,  are  there  any  of  the  formal  parts  of  an  oath 
stated.  The  statement  made  is  only  a  recital  of  a  past  occur- 
rence ;  and  it  is  manifest  that  there  was  no  intention  or  attempt 
of  the  clerk  to  give  a  detailed  account  of  the  manner  of  impanel- 
ing the  jury,  or  to  set  out  the  oath  tn  hcec  verba.  It  may  be  ob- 
served that  in  the  form  of  the  verdict  returned,  and  which  was 
prepared  and  presented  to  the  jury  by  the  trial  judge,  it  was 
staled  that  the  jury  were  duly  impaneled  and  siouni.    Counsel 


STATE  V.  BALDWIN. 


381 


ill  and 
earitiir 
once.' 


for  defendant  have  called  our  attention  to  the  case  of  Johnf>nn 
V.  The  Slate,  47  Ala.,  62,  where  ^^he  record  entry  of  the  swear- 
ing of  the  jury  is  substantially  ".nat  it  is  in  the  present  case. 
The  court  there  treated  the  recital  as  stating  the  form  and 
substance  of  the  oath  administered,  and  held  that  the  omission 
of  the  injunction  to  render  a  true  verdict,  according  to  the  law 
and  the  testimony,  was  fatal.  The  question  was  before  the 
same  court  in  a  later  case,  and  the  ruling  in  Johnson  v.  State, 
stijpra,  which  had  been  followed  in  some  other  cases,  was  ex- 
pressly overruled.  Mltahdl  v.  The  State,  5S  Ala.,  417.  In  the 
latter  case  the  court  held  that  recitals  in  the  record  relative 
to  the  swearing  of  the  jury,  like  the  one  found  in  the  record 
before  us,  are  not  to  be  regarded  as  an  attempt  to  set  out  the 
oath  actually  administered,  but  should  rather  bo  considered  as 
a  statement  of  the  fact  that  the  jury  had  been  sworn,  and  acted 
under  oath.  This  view  seems  to  us  to  be  reasonable  and  right, 
and  it  is  one  which  has  been  generally  adopted.  Boose  v.  The 
State,  10  Ohio  St.,  575;  Dyson  v.  The  State,  2G  Miss.,  362;  Bart- 
Ic'tt  V.  The  State,  28  Ohio  St.,  669;  At/ana  v.  The  State,  60  Ala., 
45;  Thomp.  &  M.  Juries,  §  200,  and  note. 

A  still  more  conclusive  answer  on  this  point  is  that  no  ob- 
jection was  made  to  the  form  of  the  oath  when  it  was  admin- 
istered, or  at  any  other  time  prior  to  its  presentation  in  this 
court.  If  there  was  any  irregularity  in  this  respect,  it  should, 
and  probably  would,  have  been  objected  to  at  the  time  it  oc- 
curred. It  is  quite  unlikely  that  there  was  an}"^  departure  from 
the  form  of  the  oath  so  well  understood,  and  which  is  in  uni- 
versal use  in  all  of  the  courts  of  the  state;  but,  if  tiie  form  of 
the  oath  was  defective,  the  attention  of  the  court,  should  have 
been  called  to  it  at  the  time  the  oath  was  taken,  so  that  it 
might  have  been  corrected.  A  party  cannot  sit  silently  by 
and  take  the  chances  of  acquittal,  and  subsequently,  when 
convicted,  make  objections  to  an  irregularity  in  the  form  of 
the  oath.  Not  only  must  the  objection  be  made  when  the  ir- 
regularity is  committed,  but  the  form  in  which  the  oath  was 
taken,  as  well  as  the  objection,  should  be  incorporated  into  the 
bill  of  exceptions,  in  order  that  this  court  may  see  whether  or 
not  it  is  sufficient.     This  was  not  done. 

2.  The  assignments  of  error  from  tiie  third  to  the  twentieth, 
inclusive,  are  based  on  the  ruling  of  the  court  in  the  admission 


.>'S^^ 


382 


AMERICAN  CRIMINAL  REPORTS. 


I?,'"* 


im 


W'4 


m 


I; 


of  testimony.  The  first  six  of  tlioso  objections  rolato  to  tlietos- 
timony  of  Albert  II.  Lewis.  This  witness  was  an  intiinuto  lu;- 
quaintanco  of  tlio  Baldwin  family,  which  consisted  of  tlio 
deceased,  tho  appellant  and  their  mother,  M.  A.  Baldwin. 
J.  W.  Baldwin,  tho  father  of  Mary  and  William  Baldwin,  died 
in  November,  1884,  leavin<^  an  estate  of  considerable  valiio. 
and  the  widow,  M.  A.  JJaldwin,  was  appointed  administratrix 
of  tho  estate.  Lewis  was  a  frequent  visitor  at  tho  Baldwin 
homestead,  was  engaged  to  bo  married  to  ^fary,  and  ho  was 
tho  conlidentlal  adviser  of  her  mother  in  tho  nianaufomont  of 
the  estate,  and  assisted  in  investing  the  money  of  the  estntc. 
In  tho  course  of  tho  trial  Lewis  was  asked  to  state  whether 
he  had  been  frequently  called  on  by  ]\Irs.  Haldwin,  after  the 
death  of  hor  husband,  to  counsel  about  the  estate,  and  also 
whether  the  appellant  was  ev^r  called  on  at  these  times  to 
counsel  with  them.  These  questions,  although  not  very  mate- 
rial, were  competent  for  tho  puri)ose  of  eliciting  tho  relations 
existing  among  the  members  of  the  Baldwin  family.  The  ob- 
jection especially  urged  against  tho  admission  of  the  testimony 
is  that  the  defendant  had  no  knowledge  that  his  mother  coun- 
seled with  Lewis  about  the  estate,  and  that  no  such  consultation 
was  had  with  Lewis  in  the  presence  of  the  defendant.  Tliis 
claim  is  not  borne  out  by  the  evidence  in  the  record.  In  the  an- 
swer to  the  question  objected  to  it  is  stated  that,  in  one  instance, 
the  defendant  was  called  in  to  confer  with  Lewis  and  his 
mother  in  regard  to  the  investment  of  funds  belonging  to  the 
estate.  On  another  occasion  the  appellant  accompanied  Lewis 
to  inspect  security  that  was  offered  upon  a  loan  negotiated  by 
Lewis  for  the  estate,  and,  indeed,  the  conduct  of  the  appellant 
in  frequently  applying  for  money  from  his  mother,  through 
Lewis,  leaves  no  doubt  about  the  question.  The  further  evi- 
dence relating  to  Lewis  transacting  business  at  the  banks  for 
Mrs.  Baldwin,  in  reference  to  deposits,  as  well  as  that  showing 
that  money  was  drawn  from  the  banks  upon  checks  signed  by 
Mary  and  her  mother,  is  unobjectionable,  and  cannot  in  any 
way  be  considered  prejudicial  to  the  defendant. 

3.  About  two  weeks  prior  to  Mary's  death,  her  mother,  who 
was  in  ill  health,  went  to  an  infirmary  in  Iowa  for  medical 
treatment,  where  she  remained  until  notice  was  received  of  hei- 
daughter's  death.    Tlio  only  occupants  of  the  house  during 


STATE  V.  BALDWIN. 


383 


licr  nbsonco  wcro  Mar}'  and  a  male  locl«jer.    Occaslonall}*  some 
of  lioi'  liid y  frieiulb  would  stay  over  nij^lit  with  liec,  but  on  the 
iiiyht  of  her  death  she  was  alono.     Tlie  evening  prior  to  her 
death  she  spent  in  the  coni|)any  of  Lewis,  who  remained  with 
her  until  about  10  o'clock.     On  the  next  evening  her  dead 
body  was  discovered  in  iier  bed-rooin.     She  was  found  lying 
in  bed,  n^bed  in  a  night-dress,  with  a  ])illow  lying  upon  her 
fiice,  and  a  small  chloroform  bottle  was  found  near  by  her  in 
the  bed,  upon  which  there  was  a  poison  label.    Willi  the  evident 
purpose  of  repelling  the  theory  of  suicide,  Lewis  was  asked  by 
the  state  wliethcr,  on  the  evening  pi-ior  to  Clary's  death,  there 
was  anything  in  her  ai)pearanco  that  made  him  believe  she  was 
in  grief  or  was  dissatislied.     He  slated  that  tiicre  was  not,  but 
that  she  was  in  good  spirits,  and  when  he  left  her  she  seemed 
to  be  hap])y.     It  is  claimed  that  this  testimony  was  incompe- 
tent, because  it  was  but  an  opinion  I'urnied  IVom  her  appear- 
ance.    It  is  a  well  known  general  rule  that  witnesses  are  not 
to  g  ve  their  individual  opinions,  but  are  to  state  the  facts,  from 
which  the  jury  are  to  form  their  opinions.    Tliere  are,  however, 
exceptions  to  this  rule,  which  are  as  well  deliiied  as  the  rule 
itsL'lf.     Wlicnevei-  the  (piestion  at  issue  is  outsitle  of  the  knowl- 
edge and  cxixM'ience  of  ordinary  jurors,  or  wliere  it  so  fur  par- 
lidc'.'s  ot  the   nature  of  science  or  trade  as  to  rei]uir(;  s])ecial 
and  ])eculiar  knowledge  or  skill  in  order  to  arrive  at  a  correct 
conclusion,  the  opinions  of  experts  are  admissible.     Tiicre  is 
another  eipially  well-recogni/,ed  exception,  founded  in  neces- 
sity,   umler   which   the   opinions   of  ordinary    witnesses   are 
received.     Facts  which  are  made  u[)  of  a  great  variety  of  cir- 
cumstances, and  a  combination  of  appearances  which,  from 
the  inlirmity  of  language,  cannot  be  pi'operly  described,  may 
be  sliown  by  witnesses  who  oliserved  them;  and,  where  their 
observation  is  such  as  to  justify  it,  they  may  state  the  conclu- 
sions of  iheir  own  minds.    'In  this  category  may  be  placed 
matters  involving  magnitude  or  quantities,  portions  of  time, 
space,  motion,  gravitation,  value,  and  such  as  relate  to  the  con- 
dition or  appearance  of  persons  and  things.     Oif//  of  Pansons 
V.  Llndmi/,  20  Kan.,  426;  T/te  State  v.  Foltocll,  14  id.,  105.    On 
the  same  principle,  the  emotions  or  feelings  of  persons  —  such 
as  grief,  joy,  hope,  despondency,  anger,  fear,  and  excitement  — 
ma}'  be  likewise  shown,  and  hence  the  testimony  objected  to 


384 


AMERICAN  CRIMINAL  REPORTS. 


AM 


1 ' 


was  properly  admitted.    Lawson,  Exp.  &  Opinion  Ev.,  rule  64; 
2  Best.  Ev.,*§  517. 

Lewis  was  intimately  acquainted  with  the  deceased.  lie 
had  visited  her  almost  daily  for  many  months,  and  was  with 
her  a  few  hours  before  her  death.  Tha  relation  in  which  ho 
stood  to  her,  and  his  opportunity  to  observe  her,  ceriainly  en- 
abled him  to  read  her  conduct,  gesture,  tone,  and  expression  of 
eye  and  face,  and  to  form  an  intelligent  o|)inion  with  respect 
to  whether  she  was  depressed  or  in  grief.  By  her  appearance 
he  could  dotormin  ■  her  condition  of  mind  with  almost  unerr- 
ing accuracy;  and  yet  how  futile  it  would  have  been  for  him 
to  have  attempted  to  portray  to  the  jury  the  facial  expression, 
the  looks  of  the  eye,  or  the  inflection  of  the  voice  which  led 
him  to  believe  tliat  slie  was  in  a  happy  frame  of  mind.  This 
species  of  evidence  is  admitted  because  it  is  the  I»cst  which,  in 
the  nature  of  thi.ius,  can  be  obtained,  the  value  of  which  de- 
pends, of  course,  upon  the  capability  of  the  witnesses,  and  tlie 
means  that  they  had  of  forming  an  opinion,  which  may  ho  as 
certained  and  thoro'.iiilily  tested  upon  cross-examination. 

What  has  been  said  here  disposes  of  the  objection  urged 
against  the  testimony  of  Frank  Price,  the  city  marshal,  who 
was  present  at  the  Baldwin  residence  on  tlie  cviMiing  that 
Mary's  death  was  tliscovered,  and  who  attended  upon  the  coro 
ner's  jury  that  was  imi)aneled  to  inquire  into  the  cause  of  hei' 
death.  He  stated,  in  response  to  inquiries  made  by  the  state, 
that  the  defendant  "was  very  nervous,  and  showed  a  great 
deal  of  fear,"  wlien  he  was  subpoenaed  and  tiiken  as  a  witness 
before  the  coronei-'s  jury.  The  con('uct  of  one  cliarged  with 
crime  about  the  lime  of  its  commission,  or  at  the  time  of  his 
arrest,  may  ahvays  be  sliown;  and,  liuder  the  rule  which  we 
have  been  considering,  the  opinion  of  the  witness  that  the  de- 
fendant api)eared  to  be  in  fear  at  that  time  was  admissible. 
Bi'owneU  V.  Pt'oph',  uS  ]\Iich.,  732. 

4.  Objection  is  also  made  to  the  testimony  of  John  Dona- 
hue, the  jailer  who  had  charge  of  the  defendant  Irom  the  time 
of  his  arrest,  which  was  made  about  ten  days  alter  the  crime 
was  discovered.  He  was  asked  what  was  the  gt-neral  de- 
meanor and  conduct  of  the  ])risoner  dm-ing  the  lime  he  had 
him  in  charge,  as  to  grief  and  sorrow,  or  whether  the  defeu<!- 
ant  manifested  any  evidence  of  grief  oi- sorrow.    He  answer.- 1 


STATE  V.  BALDWIN. 


385 


that  llic  (lefentlatit  was  unruh^  and  quarrelsome,  and  that  at 
times  1)0  was  wrestling,  scuttling  and  boxing,  and  at  other 
times  was  fussing  and  fighting,  and  i.iahing  threats.  This  in- 
quiry was  evidently  not  made  with  a  view  to  initiate  an  in(]niry 
into  the  general  character  of  the  defendant,  nor  to  show  that 
lie  had  committed  other  offenses,  and  therefore  many  of  the 
authorities  cited  by  counsel  are  inapplicable.  Tiie  manifest 
purpose  of  the  testimony  was  to  show  that  he  was  apathetic 
regarding  his  sister's  death,  and  did  not  evince  that  feeling 
and  sensibility  to  be  expected  of  a  brother.  As  has  been  said, 
the  conduct  and  demeanor  of  the  ])risoner  at  the  time  of  his 
arrest,  or  soon  after  tlie  commission  of  the  crime,  may  go  to 
the  jury  as  evidence  of  a  gnilty  mind,  and,  so  far  as  the  testi- 
mony was  contined  to  a  reasonable  time  after  the  discovery  of 
the  crime  and  his  arrest,  it  was  certainly  admissible.  Green- 
fi.'ld  V.  The  People,  8.5  N.  V.,  75.  We  are  inclined  to  the  opin- 
ion that  the  inquiry  was  too  general,  and  extended  over  too 
great  a  period;  as  the  defendant  was  in  charge  of  the  witness 
from  the  time  of  the  arrest  to  the  time  of  the  trial,  a  period  of 
about  four  months,  and  for  this  reason,  as  well  as  that  the  tes- 
timony was  somewhat  unresponsive  and  irrelevant,  we  thinlc 
tiie  motion  to  strike  it  out  ought,  to  have  been  sustained. 
However,  the  testimony  sliows  that  the  defendant  did  not 
manifest  evidence  of  grief  at  the  loss  of  his  sister  at  ;iiiy  time 
while  l:o  was  in  jail,  and  was  not  mucli  affected  by  her  unnat- 
ural (loath;  and  iience  tiie  fact  that  theincjuiry  concerning  his 
demeanor  covered  too  much  time  could  not  have  injured  him. 
And  when  we  consider  that  the  ciiarge  against  which  he  was 
defending,  and  of  which  ho  v/as  convicted,  was  that  of  poison- 
ing his  sister,  the  somewhat  irrelevant  statement  of  the  witness 
that  he  was  fussing  and  fighting  while  confined  in  jail  did  not 
operate,  we  think,  to  prejudice  him  in  the  minds  of  the  jury. 
5.  There  was  no  error,  we  think,  in  admitting  the  testimony 
of  James  and  "Warstall.  They  were  carpenters  with  large  ex- 
perience as  pattern-makers  aiul  workers  in  wood.  It  seems 
that  the  i)arties  who  discovered  the  dead  bodv  of  ^[arv  Bald- 
win  at  the  same  time  found  that  a  panel  of  an  outside  door  of 
the  Baldwin  house  liad  been  cut  an<l  taken  out.  It  appeared 
that  the  defendant  was  a  cari)enter  also,  and  a  knife  was  found 
on  his  person  which,  with  the  door  and  panel,  were  brought 
Vol.  VII -25 


iffiirjf 


ii  I 


886 


AMERICAN  CRIMINAL  REPORTS. 


I 


Ml 

Ml 


I 


•:ir^ 


.(T^r 


!  i 


Ii 


II  ii 


into  court.  These  witnesses  stated  that  the  panel,  which  was 
one-sixteenth  of  an  inch  in  thickness,  had  been  cut  out  witli  ,i 
knife,  and  could  have  been  cut  by  the  defendant's  knife;  tli;;; 
the  blade  of  the  knife  exactly  fitted  tlie  place  where  the  panel 
had  been  pierced ;  that  the  cutting  was  done  l)y  a  person  skilled 
in  the  use  of  tools;  and,  after  explaining  the  peculiar  manner 
in  which  the  door  was  constructed,  stated  that  tlie  panel  was 
evidently  taken  out  by  one  who  understood  the  construction 
of  a  door,  and  also  that  it  was  cut  from  the  outside.  The  evi- 
dence oirered  to  sustain  the  conviction  in  this  case  is  wholly 
circumstantial,  and  the  testimony  of  experts  was  more  than 
ordinarily  important.  These  men  were  skilled  workers  in 
Avood,  and  their  experience  enabled  them  to  judge,  from  the 
marks  and  impression  left  upon  the  door  by  tiie  tool  used, 
whether  it  had  been  cut  with  a  knife,  chisel,  or  saw;  whether 
it  had  been  cut  by  a  thick  or  a  thin  bladed  knife;  whether  it 
had  been  cut  by  one  accustomed  to  the  use  of  tools;  and  the 
marks  or  traces  made  upon  the  wood  by  the  knife  would  indi- 
cate to  the  trained  eye  whether  it  had  been  cut  from  the  out- 
side or  the  inside.  The  manner  in  which  the  cutting  was  done, 
and  the  effect  of  the  tools  upon  the  wood,  involve  skdl  and  ex- 
perience to  judge  of,  and  are  not  within  common  experience; 
and  it  was  therefore  proper  that  the  jury  should  be  aided  by 
the  experience  of  these  experts.  Com.  v,  Choate.  105  Mass., 
451. 

6.  A  check  drawn  by  Mrs.  Baldwin  in  favor  of  the  deceased 
was  offered  in  evidence,  of  which  the  following  is  a  copy: 

"Atchison,  July  7,  18S5. 

''' Tlte  Atchison  Savhiffd  Ban/c:  Pay  to  Mary  Baldwin,  or 
order,  five  hundred  and  fifty  dollars  (!^5.">0). 

"  Mrs.  M.  a.  Baldwin." 

This  was  admitted  for  the  purpose  of  showing  the  dealings 
among  the  members  of  the  Baldwin  family.  The  considera- 
tion of  the  check,  or  the  purpose  of  Mrs.  Baldwin  in  making 
it,  is  not  disclosed  in  the  testimony.  It  is  not  shown  that  the 
defendant  had  any  know  ledge  of  its  existence  prior  to  the  time 
it  was  offered  in  evidence,  or  was  in  any  way  concerned  with 
it.  It  was  written  on  the  blank  check  of  a  bank  at  Bloom- 
field,  Iowa,  where  Mrs.  Baldwin  was  staying;  was  written  by 
her;  and  these  facts,  together  with  the  date  of  the  check,  show 


T^ 


STATE  V.  BALDWIN. 


387 


that  It  could  not  have  even  reached  Atchison  prior  to  Mary's 
death.  The  check  was  not  referred  to  in  tlio  letters  of  the  de- 
fendant, or  of  the  deceased,  nor  was  it  identilied  by  any  uf 
the  olher  testimony;  and,  as  it  was  not  shown  to  have  been 
in  any  way  connected  with  the  defendant,  it  was  incompetent. 
But,  although  erroneously  admitted,  it  had  no  bearing  upon 
the  delendant,  directly  or  remotely,  and  we  fail  to  see  how  its 
admission  could  have  affected  him  injuriously  It  was,  there- 
fore, an  unimportant  and  harmless  error;  and  the  legislature 
has  stated  that  errors  and  defects  that  are  unimportant,  and 
which  do  not  affect  the  substantial  rights  of  the  appellant  in 
criminal  cases,  furnish  no  grounds  for  reversal.  Cnm.  Code, 
§  293. 

7.  A  letter  of  tlie  deceased  to  her  mother,  written  just  be- 
fore her  death,  and  post-marked  afterwards,  clearly  showed 
that  she  was  then  in  a  healthful  condition  of  body  and  mind. 
She  described  the  occurrences  in  the  town  and  the  affairs  at 
home;  s))oke  hopeluUy  of  the  future;  and  referred  with  evi- 
dent pleasure  to  the  constant  attention  and  devotion  of  him 
to  whom  she  was  betrothed.  The  letter  indicates  cheerfulness 
and  conttnlment,  and  contains  nothing  ;  rejudicial  to  the  de- 
fendant. It  disclosed  her  condition  of  health  and  mind,  which 
were  wholly  inconsistent  with  the  theor}'  of  suicide,  and  for 
this  reason  and  purpose  it  was  admissible.  Eoscoe,  Crim.  Ev., 
30;  3  Greenl.  Ev.,  §  135,  and  note.  Iler  letter,  written  in 
1882,  long  prior  to  her  father's  death,  was  too  remote.  It  was 
not  claimed  by  the  state  that  other  than  friendly  relations 
existed  between  the  deceased  and  the  defendant  before  his 
father's  death,  and  therefore  it  was  not  error  to  exclude  the 
letter. 

8.  The  objections  urged  to  the  question  asked  the  clergyman, 
Mulford,  on  cross-examination,  are  not  good.  After  stating  in 
his  examination  in  chief  what  the  conduct  and  appearance  of 
the  defendant  was  soon  after  the  death  of  his  sister,  with  a 
view  of  showing  the  conscious  innocence  of  the  defendant,  it 
was  proper  to  inquire  if  the  witness  had  not  stated,  before  the 
coroner's  jury,  that  the  defendant  impressed  him  at  once  as 
being  guilty  of  the  murder.  It  was  allowable  on  cross-exami- 
nation, and,  besides,  if  denied,  it  afforded  a  foundation  for  im- 
peaching the  witness.    lie  gave  a  qualiGed  answer,  saying 


i    1 ' 
*m  * 


'''^1 


388 


AMERICAN  CRIMINAL  REPORTS. 


that  he  would  not  deny  or  affirm  that  he  had  so  stated,  but 
did  deny  stating  that  he  had  a  thorough  impression  of  liis 
guilt,  and  he  added  that  the  appearance  of  the  defendant  was 
that  of  painful  surprise  that  any  one  should  suspect  him  of 
the  olTense.  We  cannot  agree  that  the  ruling  was  erroneous. 
9.  Complaint  is  made  of  the  ruling  of  the  court  in  sustaining 
objections  to  the  testimony  of  R.  I*.  Spitler.  lie  is  a  stenog- 
rapher who  was  in  the  employ  of  the  defendant's  attorneys  at 
the  time  of  the  preliniinary  examination,  and  took  a  steno- 
graphic report  of  the  evidence  then  given.  He  transcribed 
the  report,  and  then  destroyed  his  original  notes.  At  the  trial 
he  was  placed  on  the  stand  with  his  transcript  in  hand,  and, 
with  a  view  of  impeaching  the  witnesses  Price,  James  and 
"VVarstall,  he  was  requested  to  refresh  his  recollection  from  the 
transcript  and  give  tiie  testimony  of  those  witnesses  on  certain 
matters,  when  the  objoetion  of  the  state  was  sustained.  Tliat 
a  witness  may  be  permitted  to  refresh  his  memory  from  a 
writing  or  memorandum  made  by  himself  shortly  after  the 
occurrence  of  the  fact  to  which  it  relates  is  unquestioned. 
The  writing  and  memorandum  are  used,  not  as  evidence,  but 
to  aid  the  memory;  as  the  facts  must  finally  be  stated  by  the 
witness  from  personal  knowledge  and  recollection.  If  the 
witness  has  an  independent  recollection  of  the  facts  inquired 
about  there  is  no  necessity  or  proin'iety  in  inspecting  any 
notes  or  writing.  Ji  is  only  when  the  memory  needs  assistance 
that  resort  may  be  had  to  these  aids.  Now,  Spitler  had  an 
independent  recollection  of  what  was  said  by  James  and  War- 
stall,  and  repeated  it  before  the  jury;  and  therefore  there  can 
be  no  objection  to  the  ruling  of  the  court,  so  far  as  it  related 
to  the  testimony  of  those  witnesses.  So  far  as  it  related  to 
the  testimony  of  Price,  Spitler  was  not  asked  whether  he  had 
an  independent  recollection  of  what  was  said  by  him,  and 
hence  the  necessity  of  resorting  to  the  transcript  was  not  ap- 
parent. It  api)ears,  however,  that  there  was  another  sufficient 
reason  for  excluding  the  tcstimonv.  It  was  intended  as  im- 
peaching  evidence,  which  can  only  be  used  where  a  proper 
foundation  has  been  laid.  Spitler  was  asked  to  refresh  his 
memory,  and  see  if  Price  did  not  state,  on  the  preliminary  ex- 
amination, that,  when  the  defendant  was  told  that  his  sister 
was  dead,  "he  seemed  to  be  considerably  broke  up  over  it." 


STATE  V.  BALDWIN. 


389 


Looking  back  at  the  testimony  of  Price,  we  observe  that  the 
question  was:  "Did  you  not  say  in  answer  to  a  question  of 
Mr.  Gilbert,  that  he  seemed  to  be  considerably  broke  up  over 
it?-'  The  answer  of  Price  was:  "I  think  it  amounts  to  about 
the  same  thing."  Having  admitted  tlie  making  of  the  state- 
ment, the  impeaching  question  was  wholly  immaterial,  and  had 
no  foundation  on  which  to  rest. 

10.  It  is  contended  that  the  testimony  of  John  M.  Crowell 
was  erroneously  admitted.  The  point  of  objection  is  that  he 
testified  as  an  expert, —  as  one  skilled  and  experienced  in  de- 
tecting ..ime  from  the  appearance  of  those  charged  with  it. 
It  is  true,  the  prosecution  seemed,  from  the  questions,  to  have 
attempted  to  use  the  witness  as  an  ex[)ert,  but  witliout  success. 
lie  stated  that  for  fifteen  years  ho  had  been  a  poslollice  in- 
spector; had  had  considerable  to  do  with  criminals;  that  he 
saw  the  defendant  at  the  J»aldwin  house  while  his  sister  was 
lying  dead  there,  and  observed  and  conversed  with  him;  and 
the  witness  was  then  asked  if,  in  his  experience  in  dealing 
with  criminals,  it  was  his  opinion  that  the  defendant  had 
the  appearance  of  being  a  guilty  man.  This  was  very  prop- 
erly excluded  by  the  court;  and  in  another  i)art  of  the  ex- 
amination, where  the  witness  volunteered  the  opinion  that 
the  defendant  looked  guilty,  the  court  i)romptly  admonished 
the  jury  that  the  statement  was  not  evidence,  and  should  not 
be  considered  by  them.  It  is  true  that  the  witness  was  per- 
mitted to  state  that  the  defendant  did  not  appear  to  be  grieved. 
This  testimony,  as  we  have  already  seen,  is  allowable:  and  the 
fact  that  the  witness  was  an  intelligent  and  observing  man, 
with  a  knowledge  of  physiognomy,  certainly  could  not  make 
his  testimony  that  the  defendant  showed  no  signs  of  grief  in- 
competent, or  any  the  less  valuable.  It  seems  to  us  that  t'^e 
judge  was  careful  and  alert  in  guarding  the  interests  of  the 
defendant,  in  excluding  the  illegal  testimony  of  this  witness, 
and  by  allowing  him  to  speak  only  as  an  ordinary  witness. 

11.  The  only  remaining  objection  to  the  rulings  upon  the 
evidence  is  to  the  testimony  of  Dr.  Campbell,  who  was  a  prac- 
ticing physician  of  more  than  twelve  years'  experience.  lie 
testilied  as  an  expert,  and,  after  showing  some  of  the  effects 
of  chloroform  upon  the  human  system,  was  asked:  "How  is 
it  regarded  by  medical  authority  upon  that  subject,  and  by 


Si'''?' 


390 


AMERICAN  CRIMINAL  REPORTS. 


medical  men  who  are  authority  upon  that  subject?"  lie  an- 
swered: "It  is  regarded  by  writers  on  that  subject,  and  by  all 
men  who  have  used  it  to  any  great  extent,  and  b\'  all  univcr- 
salh',  so  far  as  I  know,  as  a  very  dangerous  agent,  and  an 
agent,  if  pushed  beyond  a  certain  point,  which  will  produce 
death, —  that  is,  in  dangci  always  of  producing  death.  To  bo 
sure,  a  great  many  men  have  used  it  a  great  deal,  and  have 
had  no  bad  results  from  it."  Although  the  courts  are  not 
uniform  in  their  holdings  upon  the  admissibility  in  evidence 
of  medical  and  scientilic  books,  the  great  weight  of  authority 
is  that  they  cannot  be  admitted  to  ))rove  the  declarations  or 
opinions  which  they  contain.  This  upon  the  theory  that  the 
authors  did  not  write  under  oath,  and  that  their  grounds  of 
belief  and  processes  of  reasoning  cannot  be  tested  by  cross- 
examination.  But  while  the  books  are  not  admissible,  an  ex- 
pert witness  is  not  confined  wholly  to  his  ]iersonal  experience 
in  the  treatment  of  men,  but  his  opinions  formed  in  ]iart  from 
the  reading  of  treatises  prepared  by  persons  of  acknowledged 
ability  may  be  given  in  evidence.  So,  also,  may  a  witness  re- 
fresh his  recollection  by  reference  to  standard  authorities;  but 
the  judgment  or  opinion  which  he  gives  must  be  his  own,  and 
not  merely  that  of  the  author.  In  an  early  case  it  was  i)ro- 
posed  to  show  v.hat  the  received  opinion  of  the  medical  profes- 
sion was  in  a  certain  matter  by  introducing  medical  books. 
The  ruling  was  that  thc}'^  were  not  admissible,  but  that  the 
Avitness  might  state  what  he  had  found  laid  down  in  the  books 
in  the  course  of  his  reading.  The  witness,  who  was  Sir  Henry 
Ilalford,  president  of  a  college  of  jihysicians,  stated  that  he 
considered  the  medicine  in  question  |  roper,  and  that  it  was 
sanctioned  by  the  books  and  authorities;  and  also  stated  that 
the  writings  of  certain  authors  were  considered  authority  by 
the  medical  profession.  It  was  then  objected  that  the  medical 
books  could  not  be  cited,  but  the  authors  themselves  should  be 
called.  Chief  Justice  Tindall  responded:  "  I  do  not  think  the 
books  themselves  can  be  read,  but  I  do  not  see  an}'  objection 
to  your  asking  Sir  Henry  Ilalford  his  judgment  and  the 
ground  of  it,  which  may  be  in  some  degree  founded  upon 
books,  as  a  {)art  of  his  general  knowledge."  Collier  w.  Si/np- 
son,  5  Car.  &  P.,  460.  The  present  case  falls  within  this 
authority.    Dr.  Campbell  is  shown  to  be  a  man  of  large  ex- 


h>«a 


STATE  V.  BALDWIN. 


891 


perience  and  extended  reading  in  his  profession,  who  had 
given  his  own  opinion;  and  it  was  not  improper  for  him  to 
state  that  the  opinion  was  formed  from  the  stud)'  of  books  and 
men,  and  also  that  all  the  writers  and  authorities  on  the  sub- 
ject, so  far  as  he  knew,  supported  him  in  that  opinion.  Carte)' 
V.  State,  3  Ind.,  (117;  Lawson,  Exp.  Ev.,  170;  Rogers,  Exp, 
Test.,  234;  AVhart.  Criin.  Ev.,  g  538. 

12.  The  del'entlant's  Counsel  prepared  and  requested  the  giv- 
ing of  a  series  of  instructions,  which  the  court  declined  to 
jiive,  and  the  refusal  of  these  constitutes  sixteen  of  the  alleged 
errors,  although  a  few  of  the  instructions  requested  were  incom- 
j)lete  and  inaccurate  statements  of  the  law.  In  the  main,  the 
requests  were  correct  and  applicable;  but  the  court,  instead  of 
adopting  the  phraseology  and  order  of  those  requested,  as 
seems  to  be  its  custom,  prepared  an  elaborate  charge,  in  lan- 
guage of  its  own  chousing.  The  charge  given  was  clear  and 
symmetrical,  and  embraced  the  law  of  all  proper  requests 
made  by  the  defendant,  in  language,  to  say  the  least,  equally 
as  apt  and  accurate  as  that  employed  in  the  instructions  re- 
quested; and,  indeed,  it  seems  to  us  that  the  court  advised  the 
jury  upon  and  illustrated  every  element  of  the  law  applicable 
to  the  ease.  It  would  bo  unprofitable  to  e.\tend  this  opinion 
so  far  as  to  point  out  in  detail  where  each  proper  request  is  in- 
cluded in  the  charge  given,  as  the  dilference  is  one  of  words 
merely,  and  those  not  included  are  so  obviously  improper  as  to 
require  no  special  notice. 

13.  AVe  wdl  notice  some  of  the  objections  urged  against  the 
instructions  that  were  given.  In  tiie  nineteenth  instruction  the 
court  stated  that,  "  befoi'e  tlu;  defendant  can  be  convicted  of 
murder  in  the  first  degree,  under  the  first  count  of  the  infor- 
mation, the  following  facts  must  be  established  by  the  evidence 
beyond  a  reasonable  doubt:  (I)  That  said  Mary  Baldwin  came 
toiler  death  by  an  aniesthetic  called 'chloroform ; '  (2)  that 
chloroform  is  a  poison;  (;J)  that  said  poison  was  administered 
to  said  Mary  I'aldwin  by  the  defendant  in  the  county  of 
Atchison  and  state  of  Kansas;  (4)  that  said  poison  was  ad- 
ministered by  the  defemlant  wilfully,  knowingly,  and  with 
the  intention  of  taking  the  life  of  said  Mary  Baldwin,  on  or 
about  the  8th  day  of  July,  1885;  (5)  that  said  Mary  Baldwin 
ae  ually  died  from  the  effects  of  the  chloroform  so  admin- 


i;f  1! 


892 


AMERICAN  CRIMINAL  REPORTS. 


n 


wmM 


J' 


istered  to  her.  If,  however,  you  find  that  chloroform  is  poison, 
and  that  its  administration  to  the  said  Mary  Baldwin  produced 
mph>/,c'ui  resulting  in  death,  this  would  be  a  death  from  poison, 
within  the  meaning  of  the  law.  If  you  iind  the  existence  and 
concurj'once  of  each  and  all  of  the  live  foregoing  propositions 
beyond  a  reasonable  doubt,  tiien  it  is  your  duty  to  find  the  de- 
fendant guilty  of  murder  in  the  fii'st  degree,  as  charged  in  the 
first  count  of  the  information  herein ;  but  if  vou  have  a  rea- 
sonable  doubt  of  the  existence  of  any  one  of  said  five  proposi- 
tions, then  it  will  not  be  your  duty  to  find  tlio  defendant  guilty 
of  murder  in  the  first  degree  under  said  first  count." 

To  iliis  instruction  two  objections  are  made,  the  first  of 
which  is  that  the  elements  of  malice  and  premeditation  were 
omitted,  and  not  held  to  be  essential  to  a  conviction.  It  will 
be  observed  that  the  court  told  the  jury  that  it  must  be  shown 
that  the  defendant  purposely  took  tiie  life  of  the  deceased  by 
administering  poison  to  her.  The  act  described,  and,  in  fact, 
any  murder  committed  by  means  of  ])oison,  as  well  as  by 
lying  in  wait,  involves  and  presupposes  tlie  elements  of  malice, 
premeditation  and  deliberation;  and  hence  it  was  needless  for 
the  court  to  state  that  they  were  prerequisites  to  a  conviction. 
One  of  the  five  general  facts  stated  by  the  court  to  be  neces- 
sary, in  order  to  establish  the  guilt  of  the  defendant,  was  that 
chloroform  is  a  poison;  and  because  the  court,  iu  stating  tlie 
third  and  fourth  prerequisites  to  a  conviction,  used  the  words 
"said  poison,"  it  is  argued  tluit  it  assumed  it  to  be  a  fact  that 
chloroform  is  a  poison;  and  this  is  the  otiier  objection  to  the 
instruction.  It  may  well  be  doubted  whether  it  would  be 
error  to  assume  the  existence  of  a  fact  of  such  universal  knowl- 
edge as  that  choloroform  is  a  poison  ;  but,  however  tliat  may  be, 
it  is  clear  that  the  instruction  will  not  admit  of  that  interpre- 
tation. The  jury  were  told  that  this  fact  was  essential,  and 
one  of  the  first  to  be  found;  and  having  found  ciiloroform  to 
be  a  jmison,  then  they  were,  in  efi'ect,  told  that  it  must  appear 
that  said  poison  so  found  was  administered  by  the  defendant 
at  the  time  and  place  charged,  and  with  the  intention  of  tak- 
ing the  life  of  his  sister.  Then,  in  the  concluding  sentences  of 
the  instruction,  the  jury  were  reminded  again  that  tliis  was 
one  of  the  essential  facts  to  be  found,  and  that  the  existence 
and  concurrence  of  each  and  all  of  the  five  proi)ositions  must 


STATE  V.  BALDWIN. 


393 


be  found  by  thorn  beyond  a  reasonable  doubt  before  they 
could  convict. 

14.  The  twentieth  instruction  is  the  subject  of  considerable 
criticism.  Its  language  is:  "  It  may  be  necessary  to  explain 
to  you,  to  a  certain  extent,  some  of  the  terras  used  in  the  in- 
formation, and  others  of  a  kindred  nature.  An 'ana}sthetic' 
is  defined  by  Webster  in  his  dictionary  as  '  that  which  pro- 
duces insensibility  to  pain.'  'Chloroform'  is  defined  by  him 
as  '  an  oily  liquid,  of  an  aromatic  ethereal  odor,  consisting  of 
carbon,  hydrogen  and  chlorme.  It  evaporates  speedily,  and 
has  a  specilic  gravity  of  1.5.  It  is  an  important  anajsthetic 
agent,  and  is  also  used  externall}',  to  alleviate  pain.  It  is  also 
a  powerful  solvent,  dissolving  easily  wax,  spermaceti,  resins,' 
etc.  ^A.sjj/ii/,cia^  is  defined  by  the  same  authority  as,  'origi- 
nally a  want  of  pulse,  or  cessation  of  the  motion  of  the  heart 
and  arteries;'  as  now  used,  api)arent  death  or  suspended  ani- 
mation, particularly  from  sulfocalion  or  drowning,  or  the  in- 
halation of  irrespirablo  gases,  llecently  applied,  also,  to  the 
collapsed  state  in  cholera,  with  want  of  pulse.'  '  Poison '  is 
also  defined  by  Webster  as  '  any  substance  which,  when  intro- 
duced into  the  animal  organization,  is  capable  of  producing 
morbid,  noxious  or  deadly  effect  upon  it.'  In  some  of  the 
editions  of  his  work  he  makes  the  following  comments:  'AH 
medicines  possessing  sullicient  activity  to  be  of  much  value  are 
always  poisons  in  inordinate  or  excessive  quantities,  and  every- 
thing poisonous  is  capable  of  proving  medicinal  in  suitably  re- 
duced quantities.  There  areas  many  different  modes  in  which 
poisons  operate  as  there  are  different  and  distinct  medicinal 
powers  of  any  material  activity.'  In  the  American  Cyclo- 
pedia ])oison  is  defined  as  '  any  substance  which,  introduced 
in  small  quantities  in  the  animal  economy,  seriously  dis- 
turbs or  destroys  the  vital  functions.  Under  this  head  are 
obviously  included  a  vast  number  of  bodies  belonging  to  the 
mineral,  vegetable  and  animal  kingdoms,  some  solid,  others 
fluid,  and  others  gaseous,  and  deleterious  vapors  and  mias- 
mata, imperceptible  to  the  senses; '  and  in  the  same  article  the 
same  authority  also  states  that,  '  among  the  multitude  of  sub- 
stances that  rank  as  poisons  are  many,  some  possessing  the 
most  active  qualities,  which  are  also  useful  drugs,  and  which, 
administered   in  suitable  quantities,  are  recognized    among 


]'■  (' 


301 


AMERICAN  CRIMINAL  REPORTS. 


o. 


vS'.i 


ineili(inc.s  in  universal  emploj'ment,  and  of  tlio  most  benoficiul 
cliaiuctcr.  Tiie  tlilTerenco  between  a  niedicino  and  a  poisDU 
is  frequently  a  mere  question  of  dose,  and  the  lino  which 
divides  tlieni  is  sometimes  narrow.'  As  the  questioji  is  raised 
by  the  evidence  in  this  case  whether  chloroform  is  a  poison  or 
not,  the  court  also  deems  it  proper  to  state  that  it  is  a  power- 
ful anwsthetic  agent,  having  been  discovered  so  recently  as 
1831,  and,  not  having  come  into  use  by  the  medical  profession 
until  1847,  there  may  be  some  room  for  aditl'erenco  of  opinion 
as  to  its  powers,  properties  and  elfects.  In  common  parlance, 
however,  'chloroform'  is  classed  among  the  poisons;  and,  by 
the  i)harmacy  act  passed  by  the  legislature  of  this  state  in 
1SS5,  it  is  expressly  named  as  one  of  the  things  which  it  is  un- 
lawful for  any  person  to  sell  (except  to  physicians,  photog- 
raphers, or  upon  i)rescriptions),  without  being  labeled  as  a 
*  poison.'  The  lawful  and  general  use  of  chloroform  is  for  the 
purpose  of  producing  insensibility  to  pain  during  surgical 
ojjeraiions  and  other  painful  processes;  and  in  such  cases  it  is 
generally  administered  by  physicians  and  surgeons  and  their 
assistants." 

In  regard  to  the  foregoing  instruction,  it  is  stated  that  the 
court,  in  quoting  the  definitions  given  in  the  books,  transgressed 
the  rule  which  foi'bui^  the  introduction  in  evidence  of  books  of 
authority,  or  of  any  citation  therefrom.  It  is  the  duty  of  the 
court  to  advise  the  jury  what  questions  are  submitted  for  their 
consideration,  and  the  rules  of  law  applicable  in  determining 
the  same;  and  it  may  also  review  the  facts  of  the  case,  pro- 
vided the  jury  are  informed  that  thevare  the  exclusive  judges 
of  the  facts.  Crini.  Code,  §  22(j.  In  charging  the  law  it  fails 
within  the  pro  woe  and  duty  of  the  court  to  determine  the  suf- 
ficiency of  the  indictment  or  information,  and  to  dodne  and 
make  plain  tlie  words  used  in  charging  the  offense.  By  section 
107  of  tlie  Criminal  Code  it  is  provided  that  "  the  words  used  in 
the  indictment  or  information  must  be  construed  in  their  usual 
acceptation  and  common  language,  except  words  and  phrases 
defined  by  law,  which  are  to  be  construed  according  to  their 
legal  meaning."  Testimony  is  necessary  where  the  words  have 
a  local  meaning  different  from  their  ordinary  acceptation,  or 
where  they  have  acquired  a  jjcculiar  meaning  in  some  science, 
art  or  trade.     But  the  court  takes  notice  of  the  meaning  and 


h  ti 


STATE  r.  BALDWIN. 


805 


pro- 


forco  of  the  ordinary  words  of  our  language,  and  also  of  tech- 
nical words,  where  the  meaning  is  well  settled  by  c  )mnion 
usage,  and  may.  where  it  is  necessary,  dehno  and  exphiia  them 
to  the  jury.  Tlio  supreme  court  of  Massaciiusetts  lield  that 
•'  the  general  rule  of  hiw  is  that  the  construction  of  every  writ- 
ten instrument  is  matter  of  law,  and,  as  a  necessary  conse- 
(jiience,  that  courts  must,  in  the  first  instance,  Judge  of  the  legal 
force  and  elfect  of  the  language.  The  meaning  of  words,  and 
the  grammatical  construction  of  the  English  language,  so  far 
as  they  are  established  by  the  rules  and  usages  of  language, 
are  ^^/'///^^/W^vV  matter  of  law,  to  be  construed  and  passed  upon 
by  the  court."  Bi'oion  v.  Brown,  8  Met.,  573.  See,  also,  1 
(ireenl.  E\'.,  §  5;  Thojup.  Char.  Jur.,  §  IS;  ling.  Exp.  Test., 
>5  121;  liothjersv.  Kline,  50  Miss.,  818;  Ilaleij  ik  The  State,  C3 
Ala.,  8!);  Gibson  v.  Cincinnati  Knqait'cr,  5  Cent.  Law  J.,  .'JSO. 
The  words  '•ana}sthetic,"  "chloroform"  and  "poison"  were 
used  iu  tlie  information  and  by  the  court  in  other  parts  of  its 
cliarge.  They  are  words  in  common  use  in  our  language,  and 
have  a  well-settled  meaning  which  is  not  local,  and  cannot  bo 
regarded  as  technical  or  peculiar.  It  was  therefore  proper  for 
tlie  court  to  aid  and  enlighten  the  jury  by  delini ng  the  words 
and  giving  tlieir  usual  meaning  and  acceptation  in  common 
language.  It  is  true  the  court  (juoted  the  dolinitions  given  in 
AVebster's  Dictionary  and  the  American  Cyclopedia,  but  there 
is  no  claim  that  the  definitions  are  incorrect  in  any  respect. 
What  cause,  then,  is  there  for  complaint?  By  incorpoi'aling 
the  definitions  and  comments  of  those  authorities  in  the  in- 
structions the  court  approved  them,  and  mado  the  language 
employed  in  them  its  own;  and,  as  the  definitions  are  in  no 
way  faulty,  the  defendant  has  no  reason  to  coniphiin  that  the 
language  employed  by  the  court  had  formerly  been  used  by 
others.  It  nuiy  be  stated  that  what  was  said  regarding  these 
words,  as  well  as  of  '•'■asphyxia,^''  is  not  at  all  at  variance  with 
th)  testimony;  and  if  the  words  defined  were  all  treated  as 
teahnical  terms  in  science,  and  what  was  said  of  them  as  facts, 
still  the  court,  as  we  have  seen,  had  a  right  to  sum  up  and 
present  the  facts  of  the  case,  so  long  as  the  jury  were  told  that 
they  were  the  exclusive  judges  of  all  the  questions  of  fact;  and 
this  was  done.  Neither  do  we  think  there  was  error  in  the 
statement  of  the  court  that,  in  common  parlance,  chloroform  is 


:''ii 


m 

lt. 

''''Im 

Ira^' 

1 

1 

li 

1^ 

390 


AMERICAN  CRIMINAL  REPORTS. 


cliissed  us  a  poison.     Tlioro  may  bo  some  differcnco  of  opinidu 
res[)eclin<;  soiiio  of  its  pru[)ortioa  und  ctfccts;  but  it  seoins  lo 
us  that  it  is  reyai'ded  by  tho  masses  of  tlio  people  us  a  poisou. 
Ill  addition  to  tho  fact  that  it  is  so  classed  in  tho  boo!<s,  ilio 
legislature  of  tl:e  state  has  published  it  as  u  poison,  and  le- 
t)uii'ed  that  it  shall  not  be  sold  except  upon  prescription,  or  to 
physicians  or  |)iiot()gra|)!icrs,  unless  the  vessel  in  whicii  it  is 
contained,  as  well  as  tlie  outside  wrapper,  shall  be  distinolly 
labeled  *'  Poison;*'  nor  unless,  upon  due  in(]uiry,  it  is  found  iliat 
tho  purchaser  is  aware  of  its  poisonous  character.     ISec.  12, 
ch.  K-O,  Laws  18.s."».  This  law,  which  all  are  presumed  to  know, 
places  the  same  resti'ictions  upon  the  sale  of  chloroform  as  is 
done  'A  the  case  of  arsenic,  corrosive  sublimate  and  strychnia; 
and  chisses  it  with  aconite,  belladonna,  digitalis,  oxalic  acid 
"and  other  virulent  poisons."     In  view  of  these  facts,  it  cannot 
be  well  claimed  tiiat  the  court  erred  in  telling  the  jury  that,  in 
common  parlance,  chlorof(jrm  is  classed  among  the  poisons. 
The  court,  however,  did  not  take  from  the  jury  the  question  as 
to  whether  it  is  a  poison;  but,  when  the  instructions  are  read 
together,  it  will  appear  that  what  is  complained  of  is  benelicial, 
rather  than  otherwise,  to  tho  defendant.     It  was  only  saying 
that,  altliough  chloi-oform  is  generally  regarded  by  the  masses 
of  the  people  as  a  poison,  yet  they  must  not  take  that  for 
gi'anted,  but,  before  the  jury  could  convict,  they  must,  from 
the  evidence,  find  it  to  bo  a  poison  beyond  a  reasonable  doubt. 
15.  The  court  instructed  the  jury  u\)on  the  law  of  descents 
and  distributions,  stating  fully  what  wouhl  bo  the  rights  of  tho 
defendant,  under  the  law,  upon  tho  death  of  his  father,  the 
direct  and  remote  elfect  of  his  sister's  marriage,  and  his  rights 
as  heir  of  his  mother,  if  he  should  survive  her.     In  closing  the 
instruction  the  court   stated:  "Whether  the  defendant  had 
knowledge  of  all  these  rules  of  descents  and  distributions  does 
not  clearly  ai)pear;  and,  if  he  committed  tho  crime  charged 
against  him,  he  may  or  may  not  have  been  mistaken  as  to  tho 
director  the  remote  probabilities  of  gain  from  his  sister's  death, 
and  his  motive  should  be  judged  from  his  supposition  as  to  the 
law  of  descents  and  distributions,  rather  than  from  the  accu- 
racy of  his  views  upon  that  subject."     It  is  urged  that  by  tho 
giving  of  this  instruction  tho  jury  were  sent  into  the  field  of 
conjecture  and  speculation,  to  find  a  motive  of  the  defendant 


STATE  f.  BALDWIN. 


307 


for  the  commission  of  tho  ofTonso.  It  should  bo  rcmcmboreil 
tliat  tlie  fatlior  of  the  defendjint  luid  died  Icaviiifr  a  iarire  cs- 
tato,  and  his  only  hoirs  wero  the  widow,  tho  deceased  and  tho 
dofendant.  The  deceased  was  about  to  i)o  married,  and  the 
iiintlier  was  well  advanced  in  years  and  an  invalid.  The  do- 
f(Mulant  had  spent  a  largo  part  of  tho  money  he  had  received 
fnmi  tl)c  estate,  aad  was  in  great  need  of  money.  Upon  the 
iiu|uiry  of  the  defendant,  tho  probate  judge  testified  that  he 
explained  to  tho  defendant  tho  law  of  descents  and  distribu- 
tions, but  just  what  he  said  the  law  was  is  not  shown.  The 
defendant  asked  the  court  to  instruct  the  jury  regarding  motive, 
luul  upon  the  law  of  descents  and  distributions,  and  this  re- 
quest, together  witli  the  circumstances  of  the  case,  certainly 
justified  an  instruction  upon  that  subject.  Xor  was  there  error 
in  the  last  part  of  the  instruction,  where  the  jury  were,  in 
efTect,  told,  with  respect  to  motive,  that  the  defeiulant  should 
lie  judged  by  tho  information  upon  which  ho  acted,  rather  than 
u|ton  tlie  accuracy  of  his  information. 

1(].  It  is  next  contended  that  tho  verdict  is  contrary  to  the 
evidence.  In  respect  to  tho  evidence,  we  need  only  to  quote 
from  tho  able  opinion  given  by  tho  trial  judge  in  overruling 
tlie  motion  for  a  new  trial:  "  "NVas  tho  jury  justified  in  finding 
the  defendant  guilty  upon  the  evidence  adduced?  The  theory 
of  suicide  was  extremely  improbable,  and  the  jury  were  per- 
haps full}'  justified  upon  tho  evidence  in  believing  that  the 
entering  of  the  dwelling  was  not  for  tho  purpose  of  rape, 
robbery  or  larceny.  "With  these  motives  and  theories  elimi- 
nated, the  jury  would  be  almost  driven  to  one  of  two  conclu- 
sions: Either  that  Mary  Baldwin  was  murdered  by  an  enemy 
for  the  purpose  of  revenge,  or  by  some  person  who  hojied  to 
gain  by  her  death.  In  this  view  tho  range  of  ])robabilities 
as  to  her  murderer  is  narrow  and  circumscribed.  The  circum- 
stances do  ;  ot  point  towards  any  person  other  than  the  de- 
fendant. Do  they  point  to  him  with  sufticient  precision  to 
justify  the  jury  in  saying  that  he  is  guilty  beyond  a  reason- 
able doubt?  It  is  reasonably  certain  that  Mary  Baldwin  died 
from  the  effects  of  chloroform  which  had  been  purchased  of 
Benjamin  F.  Binswanger  at  Brokaw's  pharmacy,  in  St.  Joseph, 
Missouri,  at  some  time  after  January  12,  1885.  The  defend- 
ant told  Lewis  H.  Haynes,  in  April,  May  or  June,  1885,  that  he 


m 


39S 


AMERICAN  CRIMINAL  REPORTS. 


'S:»?vW?^:;> 


)     (' 


was  going  to  St.  Joseph.  Mr.  Binswanger  was  not  asked  in 
the  court  if  he  recognized  the  defendant  as  the  person  who 
purchased  the  chh^roform;  he  only  stated  that  when  the  plio- 
tograpli  (admitted  to  he  that  of  the  defendant)  was  shown  to 
him  at  St.  Joseph,  he  tiiought  it  made  an  impression  that  he 
had  seen  tlie  same  face  before.  There  is  no  testimony  that 
any  person  raw  the  defendant  near  his  mother's  house  on  the 
night  of  Juiy  7  or  the  morning  of  July  8, 1885;  but  he  resided 
only  three  or  four  blocks  away,  and  he  admitted  to  two  per- 
sons that  he  was  out  tliat  night,  and  to  one  of  them  that  his 
wife  was  crying  when  he  returned.  Same  marks  in  and  about 
the  panel  seem  to  have  been  made  by  a  knife  having  a  blade 
like  the  one  m  the. pocket-knife  which  the  defendant  carried. 
The  door  was  proI)ably  open  when  the  panel  was  cut.  This  is 
indicated  by  the  small  cuttings  which  JMrs.  Farries  took  from 
the  sawdust  lying  ab  nit  eighteen  inches  inside  of  the  door. 
This  fact,  together  with  some  others,  probably  justiHed  the 
jur}'  in  believing  tiiat  the  murderer  resorted  to  a  ruse  to  create 
the  false  impression  that  the  house  had  been  entered  by  a 
burglar  for  the  purpose  of  robbery  or  larceny.  These  aresub- 
stantiallv  all  of  tlie  circumstances  tending  to  connect  the  de- 
fendant  with  the  crime.  A  motive  on  the  part  of  the  defendant 
for  the  commission  of  the  crime  was  perhaps  sudlciently  shown, 
if  it  be  admitted  that  a  man  could  be  base  enough  to  murder 
his  own  and  only  sister  for  the  direct  or  remote  prospect  of 
adding  a  few  thousand  dollars  to  his  fortune.  Much  of  the 
testimony  relates  to  his  conduct  soon  after  the  tragedy,  and 
the  jury  perhaps  believed  that  liis  actions  ill-comported  with 
his  innocence  of  the  cause  of  his  sister's  untimely  death.  It 
must  be  admitted  that  the  evidence  of  the  defendant's  guilt 
is  not  entirely  conclusive,  but  it  is  of  such  a  nature  that  hon- 
est and  intelligent  men  might  differ  in  opinion  as  to  its  sulli- 
ciency  to  justify  a  verdict  of  guilty."  2  Kan.  Law  J.,  326. 
Although  the  testimony  written  in  the  record  is  not  so  full  and 
satisfactory  as  we  would  wish,  after  a  careful  reading  we  are 
constrained  to  the  opinion  of  the  trial  judge  that  it  is  suffi- 
cient to  uphold  the  verdict. 

17.  The  effort  of  the  defendant  to  show  that  the  jury  were 
influenced  by  the  alleged  prejudice  and  conduct  of  the  people 
who  attended  the  trial  is  a  failure;  and  the  same  may  be  said 


PEOPLE  V.  PALMER. 


309 


of  his  attempt  to  show  tliat  some  of  the  jurors  Avere  disquali- 
fied, and  iiad  expressed  opinions  prior  to  the  trial  that  the  de- 
fendant was  guilty  of  murdering  his  sister.  Upon  this  question 
tlie  testimony  was  oral  and  conflicting,  and,  in  such  a  case, 
the  finding  of  the  trial  judge,  like  the  verdict  of  the  jury,  is 
conclusive  upon  this  court.  The  State  v.  Bohan,  19  Kan.,  5G; 
The  State  v.  Tatloio,  3-t  Kan.,  80. 

In  concluding  this  opinion  we  will  say  that  the  gravity  of 
the  offense,  the  peculiar  circumstances  surrounding  the  case, 
and  the  great  earnestness  and  ability  with  which  counsel  for 
defendant  has  pressed  his  points  upon  the  court,  have  led  us 
to  examine  the  record  witli  great  care.  The  testimony  given, 
as  well  as  every  point  made  and  authority  cited,  have  been 
considered  with  that  anxious  attention  which  the  consequences 
of  a  conviction  demand;  but  we  are  forced  to  the  conclusion 
that  the  case  has  been  well  and  fairl}''  tried,  that  the  errors 
committed  are  technical  and  unimportant,  and  not  such  as 
would  justify  a  reversal  of  the  conviction.  We  will  therefore 
affirm  the  judgment  of  the  district  court. 

All  of  the  justices  concurring. 


People  v.  Palmee. 

(109  N.  Y.,  110.) 

Murder:  Corjnis  delicti  —  Identity  of  deceased. 

Corpus  delicti  —  Idextu-ication  of  deceased.— Under  Penal  Code  of 
New  York,  section  181,  prohibiting  a  conviction  "Onless  the  death  of 
the  person  alleged  to  have  been  killed,  and  the  fact  of  the  killing  by 
the  defendant  as  alleged,  are  each  established  as  independent  facts,— 
the  former  by  direct  proof,  and  the  latter  beyond  a  reasonable  doubt,"— 
the  accused  may  be  convicted  of  murder  without  direct  proof  of  the 
identity  of  his  victim. 

Appeal  from  General  Term,  Supreme  Court,  Third  Judicial 
Department. 
The  opinion  states  the  material  facts. 

i?.  Covhin,  of  counsel,  for  appellant. 
Znolan  L.  Shedden,  for  respondent. 


'%.   t' 


400 


AMERICAN  CRIMINAL  REPORTS. 


Finch,  J.  The  prisoner  was  convietjed  of  murder  in  the  sec- 
ond degree,  and  tliat  conviction  reversed  b}'  the  general  torin 
because  there  was  no  direct  evidence  which  identiliod  tlie  body 
found  as  that  of  the  person  alleged  to  have  boon  murdoiod. 
From  that  decision  the  People  appejil.  The  question  is  a  very 
grave  one,  not  merely  to  the  prisoner,  wliose  liberty  may  de- 
pend upon  the  issue,  but  to  the  People,  and  the  administratit^n 
of  public  justice;  for,  if  the  law  be  as  the  general  term  has 
declared  it,  a  miu'derer  may  always  escape  if  only  he  shall  so 
mutilate  the  body  of  his  victim  as  to  make  identification  by 
direct  evidence  impossible,  or  shall  so  effectually  conceal  it 
that  discovery  is  delayed  until  decomposition  has  taken  away 
the  possibility  of  personal  recognition;  and  it  will  follow  that 
the  tenderness  of  the  Penal  Code  has  opened  a  door  of  escape 
to  that  brutal  courage  which  can  mangle  and  burn  the  lifeless 
body,  and  has  put  a  i)remium  ujion  and  offered  a  reward  for 
that  species  of  atrocity.  This  result  is  said  to  have  been  ac- 
complished by  section  181,  which  prohibits  a  conviction  "un- 
less the  <leatli  of  the  person  alleged  to  have  been  killed,  and 
the  fact  of  the  killing  by  the  defendi.nt  as  alleged,  arc  each 
established  as  iu<Ic;pendent  facts, —  the-  former  by  direct  j)roof, 
and  the  latter  beyond  a  reasonable  doubt."  In  the  lirst  clause 
of  this  provision  the  endeavor  to  stuto  and  describe  one  fact 
has  involved  the  statement  of  another,  changing  a  simple  into 
a  compound  fact,  and  making  it  possible  to  apply  the  require- 
ment of  direct  proof  to  tiie  two  facts  of  death  and  of  identity, 
rather  than  to  the  one  fact  of  the  death  alone.  That  some  one 
is  dead  is  directly  proved  whenever  a  dead  body  is  found.  Its 
identity  as  that  of  the  person  alleged  to  have  been  killed  is  a 
furtlier  fact,  to  bo  ne.xt  established  in  the  process  of  investiga- 
tion. If  it  be  the  meaning  of  the  Penal  Code  that  both  of 
these  facts,  identity  as  well  as  death,  arc  to  be  ))roved  b^'  direct 
evidence,  it  establishes  a  new  rule  which  nevei-  before  pre- 
vailed, antl  of  which  no  previous  trace  can  anywhere  be  found. 
It  has  always  been  the  rule,  since  the  time  of  Lord  Hale,  that 
the  wrpiis  delit-ti  should  be  jiroved  by  direct,  or,  at  least,  by 
certain  and  unequivocal,  evidence.  Ijut  it  never  was  tiie  doc- 
trine of  the  common  law  that,  when  the  corpus  delicti  had 
been  duly  established,  the  further  proof  of  the  identity  of  the 
deceased  person  should  be  of  the  same  direct  quality  and  char- 


.f  •' 


PEOPLE  t.  PALMER. 


401 


acter.  And  this  becomes  quite  evident  from  a  consideration 
of  the  history  and  philosophy  of  the  rule.  By  the  corpxts 
delicti  —  the  body  or  substance  of  the  offense  —  has  always 
been  meant  the  existence  of  a  criminal  fact.  Unless  such  a 
fact  exists  there  is  nothing  to  investigate.  Until  it  is  proved, 
inquiry  has  no  point  upon  which  it  can  concentrate.  Indeed, 
there  is  nothing  to  inquire  about.  But,  when  a  criminal  fact 
is  discovered,  its  existence,  for  the  purpose  of  judicial  investi- 
gation, must  b'3  established  fully,  completely,  by  the  most 
clear  and  decisive  evidence;  for  otherwise  the  after-reasoning 
founded  upon  it,  and  drawing  its  force  from  it,  will  be  danger- 
ous, fallacious  and  unreliable.  As  the  weakness  of  the  foun- 
dation is  more  and  more  intensified  while  the  superstructure 
ascends  and  the  weight  grows,  so  the  circumstantial  evidence 
built  upon  a  criminal  fact,  not  certain  to  have  existed,  becomes 
itself  weak  and  indecisive,  and  more  and  more  so  as  the  sus- 
picions expand  and  extend.  If  somebody  has  been  murdered, 
a  motive  for  a  murder  becomes  a  significant  fact,  rendered 
more  so  when  identification  shows  it  a  motive  for  the  particu- 
lar murder.  But,  if  the  death  is  doubtful,  the  probative  force 
of  a  motive  dwindles  to  mere  suspicion.  In  the  case  of  Rnloff 
V.  Peojdc,  18  IS".  Y.,  179,  the  doctrine  was  both  illustrated  and 
applied.  The  death  of  the  prisoner's  infant  child  was  not 
proved,  but  in  its  phico  was  put  the  equivocal  fact  of  a  sudden, 
and  unexplained  disappearance.  The  evidence  might  all  be 
true,  and  yet  the  child  be  living  and  not  dead;  and,  if  living, 
every  circumstance  relied  upon  became  at  once  fallacious  and 
deceptive.  Such  circumstances  gain  their  probative  force  only 
upon  condition  that  there  is  a  criminal  fact  which  they  serve 
to  explain,  ilni  \\\c  corpus  (hlicti  —  the  existence  of  a  crim- 
inal fact  —  may  be  completely  established,  and  the  need  of 
direct  proof  satisfied,  before  the  question  of  identity  is  reached. 
There  may  be  direct  proof  of  a  murder,  though  no  one  knows- 
the  person  of  the  victim.  A  dead  body  is  found  with  the  skull 
mashed  in  upon  the  brain,  under  circumstances  v;hich  exclude 
any  inference  of  accident  or  suicide.  There  we  have  direct 
evidence  of  the  death,  and  cogent  and  irresistible  proof  of  the 
violence;  the  latter  the  cause,  and  the  former  the  effect;  both 
obvious  and  certain,  and  establishing  the  existence  of  a  crim- 
inal fact  demanding  an  investigation.  These  facts  proved,  the 
■ql.  VII -20 


W7l 


402 


AMERICAN  CRIMINAL  REPORTS. 


'(■  ■ 


'f     V 


corpus  delicti  is  established,  although  nobody  as  yet  knows, 
and  nobody  may  ever  know,  the  name  or  personal  identity  of 
the  victim.  Beyond  the  death  and  the  violence  remain  tlie 
two  inquiries  to  which  the  ascertained  criminal  fact  gives  rise: 
who  is  the  slain,  and  who  the  slayer?  the  identity  of  the  one, 
and  the  agency  of  the  other.  These  may  be  established  by 
circumstantial  evidence  which  convinces  the  conscience  of  the 
jury,  and  because  a  basis  has  been  furnished  upon  which  in- 
ferences may  stand  and  presumptions  have  strength.  That  I 
have  correctly  stated  what  is  meant  by  the  corjnis  delicti  re- 
quiring direct  proof,  and  that  it  never  did  include  the  identity 
of  the  victim,  but  left  that  open  to  indirect  and  circumstantial 
evidence,  is  shown  by  an  unbroken  and  unvarying  concurrence 
of  authority. 

Lord  Stowell  said  in  Evans  v.  Evans,  1  Hagg.  Con.,  35:  "If 
you  have  a  criminal  fact  ascertained,  you  may  then  take  pre- 
sumptive proof  to  show  who  did  it,  to  fix  the  criminal,  having 
then  an  actual  corpus  delicti"  In  Hex  v.  Clewes,  4  Car.  &  P., 
221,  the  alleged  murder  was  in  1806,  and  in  1829  bones  were 
found  buried  under  a  barn  which  the  prisoner  had  occupied. 
The  question  submitted  to  the  jury  was  whether  these  bones 
were  the  remains  of  Ilemmings,  the  person  alleged  to  have 
been  murdered.  It  was  sought  to  identify  the  bones  by  a  car- 
penter's rule  and  the  remnant  of  a  pair  of  shoes  found  near, 
and  also  by  something  remarkable  about  the  teeth.  No  ques- 
tion of  the  competency  of  any  of  the-  evidence  was  at  all  sug- 
gested, but  its  sufficiency  was  criticised,  and  finally  left  to  the 
determination  of  the  jury,  which  rendered  a  verdict  of  ac- 
quittal. In  Wills,  Circ,  Ev.,  p.  213,  it  is  said  that  direct  and 
positive  proof  of  the  identity  of  the  deceased  is  not  required; 
and  the  case  of  Hex  v.  Cook  is  cited,  in  which  it  appeared  that 
a  human  body  had  been  burned,  but  enough  remained  uncon- 
sumed  to  show  that  it  was  the  body  of  a  male  adult,  and  its 
further  identification  was  founded  upon  circumstances,  an  im- 
portant part  of  which  was  the  finding  in  the  possession  of  the 
prisoner  of  numerous  articles  belonging  to  the  deceased.  In  licfj. 
V.  Jloplcins,  8  Car.  &  P.,  591,  the  identity  of  the  deceased  with 
that  of  the  child  alleged  to  have  been  murdered  failed,  not  only 
because  of  differences  in  the  appearance  of  the  body,  but 
also  from  differences  in  the  clothing;  and  the  whole  inquiry 


PEOPLE  V.  PALMER. 


403 


turned  upon  resemblances,  or  the  want  of  them.  In  2  Best, 
Presumptions,  780,  it  is  said  that  "every  criminal  charge  in- 
volves two  things:  First,  that  an  offense  has  been  committed; 
and  second,  that  the  accused  is  the  author  or  one  of  the  au- 
thors of  it;"  and  the  learned  writer  adds:  "The  identification 
of  the  body  of  the  deceased  need  not  be  proved  by  witnesses 
who,  by  an  actual  inspection  of  the  body,  recognize  it  as  the 
body  of  the  person  with  whose  murder  the  prisoner  is  charged; 
but  it  may  be  by  the  same  class  of  proof  as  is  used  to  identify 
the  prisoner  on  trial,  or  any  other  material  facts.  .  .  .*"  In- 
deed, it  may  be  said  that  any  proof  that  satisfies  the  jury  that 
the  body  is  that  of  the  deceased  is  sufHcient;  as,  fragments  of 
the  clothing  identified  as  similar  to  that  worn  by  the  deceased 
when  last  seen  alive."  Starkie  (page  575)  defines  the  corpus 
delicti  as  ^^  the  fact  that  the  crime  has  been  actually  perpe- 
trated;" and  Greenleaf  (volume  3,  §  101)  as  "the  fact  that  a 
murder  has  been  committed;"  and  adds  that  the  rule  requires 
"unequivocal  and  certain  proof  that  some  one  is  dead."  All 
these  cases  and  authors  hold,  without  exception,  that  until  a 
criminal  fact  has  been  established,  ''^ anteqvam.  de  criinini  con- 
stiterit,^^  there  can  be  no  basis  for  presumptive  proof;  but 
when,  in  a  case  of  murder,  that  basis  has  been  certainly  sup- 
plied, the  identity  of  the  victim  and  the  agency  of  the  prisoner 
may  be  shown  by  circumstances.  So  far  as  I  have  been  able 
to  discover,  that  rule  has  always  been  recognized  and  applied 
in  this  country.  A  few  of  the  more  remarkable  cases  may  be 
studied  to  demonstrate  its  wide  prevalence.  \n  Peojdc  v.  Wil- 
son, 3  Park.  Crim.  R.,  199,  it  appeared  that  a  dead  body,  with 
marks  of  violence  upon  it,  had  been  washed  ashore.  It  was 
alleged  to  have  been  the  bod}*^  of  Capt.  Palmer,  for  whose 
murder  the  prisoner  was  being  tried.  No  direct  evidence  of 
that  identity  was  or  could  be  given;  but,  the  criminal  fact  of 
a  death  by  violence  having  been  fully  establislied,  the  identit}' 
of  the  remains  was  proved  by  circumstances.  Personal  recog- 
nition had  become  impossible,  and  identity  was  established  by 
an  inference  from  resemblances.  The  height  of  the  deceased 
was  shown,  an  unusual  length  of  face,  and  a  widening  of  the 
end  of  the  little  finger,  to  which,  in  a  general  way,  the  body 
corresponded.  But  a  more  important  fact  was  that  the  cap- 
tain had  imprinted  his  name  upon  his  arm  and  leg,  and  in  the 


m 


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v. 


11 


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IK 

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A 


1  '<  ^ 

f     «*v 
•  viff"?5iS  T 


r  ^3 


^^  It 


404 


AMERICAN  CRIMINAL  REPORTS. 


same  portions  of  the  body  found  the  skin  had  been  cut  away, 
except  that  on  the  leg  the  letter  "  P "  remained  visible.  A 
brother-in-law  of  deceased,  who  had  seen  the  body,  was  asked 
the  direct  question  wliose  body  it  was,  but  the  court  would  not 
permit  an  answer;  saying  that  the  question  was  not  the  ordi- 
narv  one  of  personal  identity,  since  the  body  had  been  sub- 
r  ,vi '  for  five  months,  but  was  one  of  an  inference  from 
ri  :  I)  .nces,  which  the  jury,  and  not  the  witness,  must  draw. 
The  prisoner  was  convicted.  In  Com.  v.  Webster,  5  Cush.,  295, 
tao  identifiiia+'on  stood  mainly  upon  a  block  of  teeth  found  in 
the  fumace  m  J'ere  part  of  the  body  was  consumed.  There 
was  no  direct  recognition  of  the  body  by  any  one,  but  the  cir- 
cumstantial evidence  was  very  strong.  I  do  not  see  how  the 
identification  of  the  false  teeth  can  be  deemed  direct  evidence 
of  the  identity  of  the  remains.  It  was  a  fact  from  which  that 
identity  c  3uld  be  inferred,  and  the  inference  be  very  strong, 
but  the  conclusion  would  still  be  an  inference.  If  Dr.  Keep, 
the  dentist,  after  examining  the  teeth,  had  been  asked  the  di- 
rect question  whether  the  mutilated  remains  were  those  of  the 
deceased,  he  could  only  have  answered  in  the  affirmative  as  a 
judgment  founded  upon  a  process  of  reasoning.  False  teeth 
are  artificial,  and  not  natural.  They  may  be  worn  at  one  time, 
and  omitted  at  another.  They  may  be  lost  from  the  mouth, 
and  pass  into  a  stranger's  possession.  If  their  identity,  as 
found  among  the  remains,  directly  identified  the  bod\%  why 
did  not,  in  the  present  case,  the  proved  identity  of  the  boot 
found  on  the  foot  of  the  body  discovered  directly  identify 
that  body  ?  Is  not  the  difference  rather  one  of  the  degree  than 
of  the  kind  of  proof?  I>ut  in  both  cases  I  think  the  evidence 
was  inferential,  and  cannot  justly  be  regarded  as  direct.  In 
Taylor  v.  State,  35  Tex.,  07,  there  was  no  direct  proof  of  the 
identity  of  the  deceased;  but  his  clothing,  hat  and  |)apers  were 
identiiiod;  and  his  wagon  and  team,  and  even  his  dog,  were 
found  in  the  prisoner's  possession.  A  still  more  remarkable 
case  was  that  of  State  v,  Williams,  7  Jones  (N.  C),  446,  where 
with  the  bones  were  found  some  trifling  articles  of  feminine 
attire,  seemingly  insufficient  to  justify  an  inference  of  iden- 
tity. In  all  the  investigation  to  which  the  briefs  of  counsel 
have  led  the  way,  and  which  I  have  independently  pursued,  I 
have  found  no  trace  of  authority  for  the  doctrine  said  to  he 


PEOPLE  V.  PALMER. 


405 


established  by  the  Penal  Code,  save  here  and  there  some  care- 
less expression  which  seems  to  include  the  identity  of  the  de- 
ceased in  the  corpus  delicti,  and  which  plainly  originated  in  a 
tacit  assumption  of  that  identity  for  the  purposes  of  the  idea 
sought  to  be  conveyed. 

We  come  now  to  the  inquiry  whether  the  rule  of  the  com- 
mon law  has  in  fact  been  changed  by  the  Penal  Code,  and  wo 
are  to  approach  that  inquiry  with  the  presumption  that  no 
such  change  was  intended  unless  the  statute  is  explicit  and 
clear  in  that  direction,  1  Kent,  Coram.  (3d  ed.),  463;  White 
V.  Wager,  32  Barb.,  250,  affirmed  25  K  Y.,  328.  I  am  per- 
suaded that  a  careful  analysis  of  the  section  referred  to  will 
show  that  no  such  change,  so  radical  and  dangerous,  was  either 
made  or  intended,  and  that  the  sole  scope  and  purpose  of  the 
section  was  to  declare  in  explicit  terms  the  existing  rule  of  the 
common  law.  The  language  of  that  section  contemplates  two 
independent  facts,  not  three  nor  four.  It  speaks  of  them  as 
"each,''  and  describes  them  as  "the former"  and  "the latter." 
One  is  to  be  proved  by  direct  evidence;  the  other  beyond  a 
reasonable  doubt.  This  language  is  appropriate  and  precise, 
if  b}'  the  one  fact  is  meant  the  fact  of  the  death  of  the  person 
alleged  to  have  been  killed,  however  that  identity  may  be 
shown,  and  assuming  it  to  have  been  established ;  and  by  the 
other  the  guilty  agency  of  the  prisoner.  But  the  language  be- 
comes quite  inappropriate  if  the  meaning  is  that  two  facts,  the 
death  of  the  deceased  and  his  identity,  are  to  be  established  by 
direct  evidence.  It  is  the  one  fact  that  is  to  be  thus  proved. 
When  the  person  supposed  or  alleged  to  be  dead  is  identified, 
the  fact  that  such  person  is  actually  dead  —  not  merely  that 
he  has  disappeared  or  cannot  be  found  —  that  vital  fact  of  his 
death  must  be  proved  by  direct  evidence.  As  the  learned  dis- 
trict attorney  very  aptly  states  it:  "Direct  proof  that  some- 
body is  dead  becomes  direct  proof  that  A.  B.  is  dead  w'hen 
the  body  is  identified  as  that  of  A.  B."  But  the  meaning  and 
construction  of  the  section  becomes  plainer  when  we  observe 
that  if  the  identity  of  the  deceased  is  involved  in  the  first  fact, 
treated  as  a  compound  fact  and  requiring  direct  proof,  it  is 
also  embraced  in  the  second  fact,  which  is  equally  a  compound 
fact,  and  which  may  be  proved  by  indirect  evidence.  The 
second  clause  reads,  "  the  fact  of  the  killing  by  the  defendant 


:^-*^";\'> 


m 


rrw 


if 


400 


AMERICAN  CRIMINAL  REPORTS. 


i 


as  alleged ;"  not  merely  a  killing,  but  the  killing  as  alleged  — 
the  precise  killing  with  which  he  stands  charged ;  in  the  pres- 
ent case,  not  simply  the  killing  of  somebody,  but  the  killin<p 
alleged,  that  of  Peter  I3ciiiard,  the  identical  person,  whatever 
his  name,  whose  dead  body  has  been  found.  The  killing  of 
that  particular  person  is  therefore  again  a  compound  fact,  nuule 
up  of  violence  causing  death,  and  its  infliction  upon  the  person 
of  the  alleged  victim,  and  none  other  than  he.  Under  tlie 
second  clause,  by  its  explicit  terms,  it  may  be  proved  that  the 
prisoner  killed  Peter  Bernard,  by  circumstantial  evidence;  for 
that  is  the  killing  alleged,  and  no  other  is  admissible  or  referred 
to.  It  would  seem  to  follow,  therefore,  upon  the  construction 
asserted  by  the  defense,  that  the  same  identification  as  a  limit- 
ation upon  the  death  must  be  proved  by  direct  evidence,  but 
as  a  limitation  upon  the  killing  may  be  proved  by  indirect  evi- 
dence. No  such  confusion  or  contradiction  was  intended  oi- 
effected.  The  requirement  of  the  code  goes  upon  the  assunip 
tion  that  the  identity  of  the  deceased,  either  by  name  or  de- 
scription, has  been  established  in  the  ordinary  way,  and  then 
requires  that  the  death  of  that  person  thus  identified  shall  be 
directly  proved,  and  the  killing  by  the  prisoner  of  the  same 
person  shall  be  shown  beyond  a  reasonable  doubt.  Those  two 
facts  alone  are  the  subject  of  the  legislation,  and  they  are 
properly  referred  to  as  "each,"  and  correctly  described  as 
"  the  former  "  and  "  the  latter."  No  purpose  to  change  the 
settled  rule  of  the  common  law  is  disclosed,  but  simply  an  in- 
tent to  declare  it  as  it  had  long  existed.  The  trial  judge,  there- 
fore, was  right,  and  the  general  term  was  in  error. 

We  have  read  the  evidence  given  carefully.  That  the  body 
found  was  that  of  Peter  Bernard  was  established  beyond  rea- 
sonable doubt.  The  prisoner  was  a  witness  in  his  own  behalf. 
He  shows  that  he  and  Bernard  were  in  the  locality  where  the 
body  was  found,  at  about  the  date  of  the  latter's  disappear- 
ance. His  own  declarations  show  that  he  had  no  doubt  of  the 
identity  of  the  body  found.  He  explains  his  possession  of  a 
$20  bill  which  in  some  manner  he  got  from  Bernard,  but  the 
explanation  is  not  at  all  probable  or  satisfactory.  The  evi- 
dence of  the  persons  who  claim  to  hav«i  seen  the  deceased  after 
the  date  of  the  murder  was  j)robably  honest,  but  cpiite  certainly 
mistaken.     He  was  a  total  stranger  to  them,  and  their  com 


ing  of 


STATE  V.  CHYO  CHIAGK. 


407 


parison  was  founded  on  a  photograph.  In  the  Case  of  Webster 
there  were  five  persons  who  honestly  bel  aved  that  they  saw 
Parkman  alivo  after  he  had  in  fact  been  killed.  Upon  the 
whole  case,  we  see  no  sufficient  reason  to  distrust  the  conclu- 
sion which  the  jury  reached. 

The  judgment  of  the  general  term  should  bo  reversed,  and 
that  of  the  oyer  and  terminer  of  Clinton  county  affirmed. 

(All  concur,  except  Gkay,  J.,  dissenting.) 


State  v.  Cuyo  Chiagk. 

(93  Mo.,  305.) 

MUODER :   Evidence  of  co-defendant  —  Of  accomplice  —  Oath  binding  on 

the  conscience. 

1.  Evidence — Error  to  permit  co-defendant  to  testify,  when.— In  a 
trial  lor  murder  it  is  ei  ror  to  permit  one  who  is  jointly  indicted  with 
the  defendant  and  others  to  testif}'  on  behalf  of  the  state,  when  the 
ciii^e  a};aiust  himself  is  not  disposed  of  by  conviction,  acquittal  or  nolle 
pioHvqui,  though  he  is  not  put  upon  his  trial. 

-'.  Evidence  —  Co-defendant.—  Under  Revised  Statutes  of  Missouri,  1879, 
section  1918,  wiiich  provides  that  "  no  person  shall  be  incompetent  to 
testify  as  a  witness  in  any  criminal  cause  or  prosecution  by  reason  of 
being  the  person  on  trial  or  examination,  .  .  .  provided  that  no 
person  on  trial  or  examination  .  .  .  shall  be  required  to  testify, 
but  any  such  person  may,  at  the  option  of  the  defendant,  testify  in  his 
behalf,  or  on  behalf  of  a  co-defendant,"  it  is  error  to  refuse  to  permit 
the  co-defendants  of  the  accused,  jointly  indicted  with  him,  but  not 
put  on  trial,  to  testify  in  his  behalf. 

3.  Oath  —  Religious  beuef  of  Chinese  —  "  Burning  joss-sticks."  —  Un- 
der Revised  Statutes  of  Missouri,  1879,  sections  3324, 3325,  providing  that 
the  oatii  shall  be  administered  to  a  person  about  to  be  sworn  in  the  mode 
most  binding  on  his  conscience,  and  that  every  person  believing  in  any 
religion  other  than  the  Christian  religion  shall  be  sworn  according  to 
the  peculiar  ceremonies  of  his  religion,  when  a  Chinese  interpreter 
states  tiiat  "  tiie  joss-stick  burning  is  the  true  oath  among  the  Chinese," 
it  is  error  to  compel  him  to  be  sworn  in  the  usual  way. 

!.  Wrongful  arrest  and  detention. — In  Missouri  the  fact  that  the  de- 
fendant has  been  wrongfully  arrested  and  detained  does  not  impair 
the  validity  of  an  indictment,  otherwise  valid,  subsequently  found 
against  liim. 

5.  iNSTRut'TioN  —  Accomplice  —  Corroboration.— Under  section  1917, 
Revised  Statutei  of  Missouri,  the  testimony  of  an  accomplice  must  be 


408 


AMERICAN  CRIMINAL  REPORTS. 


mi'Kv^ 


Mi 


corroborated  by  other  evidence  in  respect  to  the  identity  of  the  accnscl. 
Hence  an  inKtruction :  "  The  testimony  of  an  accomplice  is  admisHiltie, 
yet,  when  not  corroborated  by  the  testimony  of  some  person  not  im- 
plicated in  tlio  crime  as  to  matters  material  to  the  issue,  ouglit  to  U> 
received  with  great  caution  by  the  jury,"  is  erroneous,  because  it  docs 
not  show  tliat  the  words  "  matters  material  to  the  issue  "  include  the 
identity  of  the  accused. 

Appeal  from  St.  Louis  Criminal  Court.  Indictment  for 
murder. 

B.  G.  Boone,  attorney-general,  A.   G.  Clover  and   G.  0. 
Bishop,  for  the  state. 
Martin  db  Fauntleroy  and  II.  D.  Lawjhlin,  for  appellant. 

SiiicuwooD,  J.  By  a  special  grand  jury  at  the  May  term, 
1885,  of  the  St.  Louis  criminal  court,  the  defendant  was  in- 
dicted jointly  with  Chyo  Pock,  Hock  Siagk,  Cong  Seng,  Chyo 
Goom,  You  Sing  and  Pock  Sig,  all  Chinamen,  for  the  murder 
of  Lou  Johnson,  also  a  Chinaman,  in  the  city  of  St.  Louis,  on 
June  1,  1885.  Tlie  defendant  obtained  a  severance,  and,  bein^^ 
separately  tried,  was  convicted  at  the  Jainuary  term,  1886,  of 
murder  in  the  first  degree,  and  sentenced  accordingly.  The 
indictment  contained  three  counts,  all  charging  the  same  of- 
fense: "(1)  That  Chyo  Pock,  Chyo  Chiagk,  Ilock  Siagk  and 
Cong  Seng  stabbed  and  killed  deceased  with  knives;  (2)  that 
Chyo  Pock  and  Chyo  Chiagk  stabbed  and  killed  deceased. 
Hock  Cliiagk  and  Cong  Seng  being  present  aiding  and  abet- 
ting; and  (3)  that  Chyo  Chiagk  (appellant)  stabbed  and  killed 
deceased,  Chyo  Pock,  Hock  Siagk  and  Cong  Song  being  pres- 
ent, aiding  and  abetting  in  the  killing."  In  eacn  and  all  of 
these  counts  the  defendants  Chyo  Goom,  You  Sing  and  Pock 
Sig  were  charged  as  accessories  before  the  fact. 

1.  Was  error  committed  in  permitting  Cong  Seng,  jointly 
indicted  with  defendant  and  others,  but  not  put  upon  his  trial, 
to  testify  on  behalf  of  the  state  and  against  the  defendant? 
Was  error  committed  in  refusing  to  permit  the  co-defendants 
of  the  defendant,  jointly  indicted  with  him,  but  not  put  on 
trial,  to  testify  in  bis  behalf?  Of  these  questions  in  their 
order. 

As  to  the  first.  In  the  endeavor  to  ascertain  the  present 
status  of  the  law  in  this  state,  as  involved  in  this  question,  it  is 


STATE.  V.  CHYO  CHIAGK. 


409 


necessary  to  give  a  summary  of  what  has  been  heretofore  de- 
cided by  this  court,  as  well  as  to  quote  from  the  text-writers 
and  to  set  forth  certain  statutory  provisions  bearing  on  the 
point  in  hand. 

Bishop  says:  "One  of  two  or  more  joint  defendants  cannot 
be  a  witness  for  or  against  another,  even  on  a  separate  trial, 
until  the  case,  as  to  himself,  is  disposed  of  by  a  plea  of  guilty, 
or  a  verdict  of  conviction  or  acquittal,  or  a  discharge  on  a  plea 
in  abatement.  Then  he  may  be.  Sentence  need  not  be  ren- 
dered. Of  course  if  the  indictments  are  separate  he  may  be  a 
witness,  though  the  offense  is  supposed  to  be  joint."  1  Bish. 
Crini.  Proc,  §  1020,  and  cases  cited.  "  According  to  Lord  Hale 
it  was  the  usage  in  his  time  not  to  indict  one  who  was  to  be  a 
witness  because  this  would  disparage  his  testimony ;  but  in  our 
day  no  good  reason  appears  for  attempting  to  veil  from  a  jury 
the  real  facts  with  a  gauze  so  transparent.  Hence  with  us  one 
of  the  methods  is  for  the  prosecuting  officer  to  require  the  ac- 
complice to  submit  to  be  indicted  with  the  rest.  Whereupon 
the  law  is  that  a  joint  defendant  cannot  be  a  witness  for  or 
against  the  others,  even  on  a  separate  trial,  till  the  case  is  dis- 
posed of  as  to  him  by  a  conviction  or  acquittal  or  by  a  nolle 
prosequi.  But  judgment  on  the  conviction  need  not  be  ren- 
dered. Therefore  the  defendant  who  is  to  testify  pleads  guilty 
and  then  testifies.  If  his  testimony  entitles  him  to  be  dis- 
charged, there  is  a  nolle ^rosaiui  or  other  appropriate  proceed- 
ing; or,  if  not,  the  court  has  only  to  render  sentence  on  the 
plea  of  guilty."     Ihid.^  8,  IIGG,  and  cases  cited. 

In  Best's  Principles  of  Evidence  (by  Chamberlayne),  180,  it 
is  said:  "Except  as  above  stated,  the  incompetency  of  accused 
parties  to, give  formal  evidence  in  criminal  proceedings  still 
subsists;  nor  even  can  parties  jointly  indicted  be  called  as  wit- 
nesses for  or  against  themselves  or  against  each  other." 

Another  author  says:  "But  as,  in  civil  actions  against  sev- 
eral defendants,  a  co-defendant  may  sometimes  be  so  circum- 
stanced as  to  be  a  competent  witness,  so  in  criminal  prosecu- 
tions one  of  several  persons  jointly  indicted  may  be  rendered 
competent  to  give  evidence  either  for  the  prosecution  or  for 
his  co-defendants.  Thus,  upon  an  information  by  the  crown 
against  two  or  more,  if  a  nolle  prosequi  be  entered  by  the  at- 
torney-general, either  before  or  at  the  trial,  as  to  one  of  the 


J 


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1 

410 


AMERICAN  CRIMINAL  REPORTS. 


defendants,  such  defendant  may  be  called  as  a  witness  for  the 
crown  ay;ainst  his  co-defendant.  So  where,  upon  a  joint  in- 
dictment a<j:ainst  two,  one  had  pleaded  in  abatement,  and  tor 
want  of  replication  jiid^^ment  had  been  entered  that  ho  shoiiUl 
be  dismissed  and  discharged,  he  was  admitted,  without  objec- 
tion, as  a  competent  witness  for  the  other  defendant,  boinjj 
himself  no  lon«^er  interested  in  the  event  of  the  ])rosecution." 
"It  has  been  held,  in  a  recent  case,  that  a  prisoner  wiio  has 
pleaded  guilty  to  an  indictment  is  a  competent  witness  against 
other  defendants  joined  in  the  same  indictment.  It  was  con- 
tended in  this  case  that  the  defendant  was  not  admissible  as  a 
witness  against  two  other  prisoners  included  in  the  same 
dictment  because  he  was  a  party  to  the  record;  but  Aide 
B.,  observed  that  ho  was  not  a  party  to  the  issues,  the  ouij 
issues  being  whether  the  two  other  prisoners  were  guilty  or 
not."     1  Phil.  Ev.,  04,  05. 

Greenleaf  says:  "In  regard  to  defendants  in  criminal  casc:^, 
if  the  state  would  call  one  of  them  as  a  witness  against  others 
in  the  same  indictment,  this  can  be  done  only  by  discharging 
him  from  the  recortl,  as  by  the  entry  of  a  nolle  prosequi,  or  by 
an  order  for  his  dismissal  and  discharge,  where  he  has  pleaded 
in  abatement  as  to  his  own  person,  and  the  plea  is  not  an- 
swered, or  by  a  verdict  of  acquittal  where  no  evidence,  or  not 
sufficient  evidence,  has  been  adduced  against  him.  In  the 
former  case,  where  there  is  no  proof,  he  is  entitled  to  the  ver- 
dict; and  it  may  also  be  rendered  at  the  request  of  the  other 
defendants,  who  may  then  call  him  as  a  witness  for  them- 
selves as  in  civil  cases.  In  the  latter,  where  there  is  some  evi- 
dence against  him,  but  it  is  deemed  insufficient,  a  separate 
verdict  of  acquittal  may  be  entered  at  the  instance  of  the  pros- 
ecuting officer,  who  may  then  call  him  as  a  witness  against  the 
others.  On  the  same  principle,  where  two  were  indicted  for 
an  assault,  and  one  submitted  and  was  fined,  and  paid  the  fine, 
and  the  other  pleaded  '  not  guilty,'  the  former  was  admitted 
as  a  competent  witness  for  the  latter,  because  as  to  the  witness 
the  matter  was  at  an  end.  13ut  the  matter  is  not  considered 
as  at  an  end,  so  as  to  render  one  defendant  a  competent  wit- 
ness for  another,  by  anything  siiort  of  a  final  judgment  or  a 
plea  of  guilty.  Therefore,  where  two  were  jointly  indicted  for 
uttering  a  forged  note,  and  the  trial  of  one  of  them  was  post 


STATE  V.  CHYO  CHIAGK. 


411 


ascs. 


poneil,  it  was  held  that  ho  could  not  bo  called  as  a  witness  for 
tlie  other.  So  whore  two,  beiny'  jointly  indicted  for  an  as- 
sault, pleaded  separately  'not  guilty,'  and  elected  to  bo  tried 
separately,  it  was  held  that  the  one  tried  first  could  not  call 
the  other  as  a  witness  for  him."  1  Greenl.  Ev.,  g  ;}03.  Else- 
where the  same  author  states:  "The  usual  course  is  to  leave 
out  of  the  indictment  those  who  are  to  bo  called  as  witnesses; 
hut  it  makes  no  difference  as  to  the  admissibility  of  an  accom- 
plice whether  he  is  indicted  or  not,  if  he  has  not  been  put  on 
his  trial  at  the  same  time  with  his  companions  in  crime.  lie 
is  also  a  comi)etent  witness  in  their  favoi ;  and  if  ho  is  put  on 
his  trial  at  the  same  time  with  them,  and  there  is  only  very 
slight  evidence,  if  any  at  all,  against  him,  the  court  may,  as 
we  have  already  seen,  and  generally  will,  forthwith  direct  a 
separate  verdict  as  to  him,  and  upun  his  acquittal  will  admit 
him  as  a  witness  for  the  others.  If  ho  is  convicted,  and  the 
punishment  is  by  tine  only,  ho  will  be  admitted  for  the  others^ 
if  he  has  paid  the  fine."     1  Greenl.  Ev.,  §  379. 

Wharton  says:  "An  accomplice  is  a  competent  witness  for 
the  prosecution,  although  his  expectation  of  pardon  depends 
upon  the  defendant's  conviction,  and  although  ho  is  a  co- 
defendant,  provided  in  the  latter  case  his  trial  is  severed  from 
that  of  the  defendant  against  whom  he  is  offered."  Whart. 
Crim.  Ev.  (9th  ed.),  §  439.  In  another  place  ho  says:  "At 
common  law,  an  accomplice,  not  a  co-defendant,  is  always  a 
competent  witness  for  the  defendant  on  trial.  But  when  in- 
dicted jointly  with  the  defendant  on  trial,  although  he  has 
pleaded  and  defended  separately,  he  is  not,  at  common  law,  a 
competent  witness  for  his  co-defendants,  unless  immediately 
acquitted  by  a  jury,  or  a  nolle  j^ronetjui  be  entered;  and  the 
same  rule  applies  to  accessories.  Whether  the  trial  be  joint 
or  several  the  rule  is  said  to  be  the  same."     Id.,  §  445. 

1  now  will  briefly  examine  our  own  decisions.  In  Garrett 
V.  State,  G  Mo.,  1,  it  was  ruled  that  an  accomplice  jointly  in- 
dicted with  others,  who  is  not  put  on  his  trial  with  them,  may 
be  a  witness  for  them.  In  McJIUlen  v.  State,  13  Mo.,  30,  this 
view  of  the  admissibility  of  a  witness  under  such  circumstances 
was  disapproved,  though  no  ruling  was  made.  In  Fitzgerald 
I'.  State,  14  Mo.,  413,  where  several  were  jointly  indicted,  it 
v>  a  ^  ruled  that  it  was  discretionary  with  the  trial  judge  whether 


|l'     ! 


'A. 


412 


AMERICAN  CRIMINAL  REPORTS. 


if-S 


■i-i 

i 


SH  -^' 


a  severance  should  be  allowed  the  defendants.    All  were  then 
put  upon  their  trial,  and  it  was  then  af^ked  that  the  jury  be 
permitted  to  pass  on  the  case  of  Ward,  so  that  he  might  be 
used  as  a  witness  for  his  co-defendants.    This  request  was  also 
refused,  and  the  result  was  that  Ward  was  acquitted  and  the 
other  defendants  convicted.    And  the  second  ruling  was  also 
approved  by  this  court.     This  case  was  followed,  in  1851,  by 
that  of  State  v.  lioberts,  15  Mo.,  29,  where  quite  an  extensive 
discussion  of  the  point  decided  in  Garrett  v.  State,  supra,  was 
had;  and  the  conclusion  reached,  after  an  examination  of  the 
authorities,  was  that,  where  two  defendants  are  jointly  indicted, 
neither  is  admissible  as  a  witness  for  his  co-defendant,  no  mat- 
ter whether  they  be  jointly  or  separately  tried.    On  this  point 
Scott,  J.,  dissented.    In  1852  it  was  ruled  to  be  the  proper 
practice  for  the  state  to  enter  a  nol.  pros,  in  order  to  render  one 
defendant  a  competent  witness  against  his  co-defendant.   St<iti' 
V.  Clump,  16  Mo.  385.     In  1854  the  ruling  made,  that  jointly 
indicted  parties  cannot  be  witnesses  for  each  other,  whether 
jointly  or  severally'  tried,  was  again  announced.     State  v.  Ed- 
wards, 19  Mo.,  674. 

In  1855  the  legislature  enacted  the  following  section :  "When 
two  or  more  persons  shall  be  jointly  indicted,  the  court  may, 
at  any  time  before  the  defendants  have  gone  into  their  de- 
fense, direct  any  defendant  to  be  discharged,  that  he  may  be 
a  witness  for  the  state.  A  defendant  shall  also,  when  there  is 
not  sufficient  evidence  to  put  him  on  his  defense,  at  any  time 
before  the  evidence  is  closed,  be  discharged  by  the  court  for 
the  purpose  of  giving  testimony  for  a  co-defendant.  The  order 
of  discharge  shall  be  a  bar  to  another  prosecution  for  the  same 
offense."  2  R.  S.  1855,  p.  1193,  §  25.  The  section  just  quoted 
is  now  section  1917,  Revised  Statutes  of  1879.  This  section, 
coming  on  the  heels  of  so  much  discussion  of  the  point  already 
mentioned,  may  doubtless  be  regarded  as  a  legislative  regula- 
tion of  the  practice  to  bo  pursued  whore  either  the  state  or  a 
co-defendant  desires  to  use  as  a  witness  a  co-defendant  jointly 
indicted;  and  in  view  of  the  authorities  citfid,  and  the  conflict 
they  show,  the  section  may  be  deemed  declaratory  of  what 
was  thought  to  be  the  correct  rule  at  common  law.  So  that, 
whether  we  follow  the  rule  as  announced  at  common  law  by 
eminent  authors  and  judges,  as  already  seen,  or  whether  we  pur- 


STATE  V.  CHYO  CHIAGK. 


413 


ere  then 

jury  be 
nr.ightbe 

was  also 
1  and  the 
was  also 

1851,  by 
extensive 
tj}m,  was 
)n  of  the 
indicted, 
,  no  mat- 
his  point 
e  proper 
nder'one 
nt.  State 
It  jointly 

whether 
'te  V.  Ed- 

:  "When 
•iirt  may, 
their  de- 

>  in  ay  be 
1  there  is 
any  time 
court  for 
'he  order 
the  same 
It  quoted 

section, 
t  already 

>  regula- 
ate  or  a 
t  jointly 
^  conflict 
of  what 
So  that, 

law  by 
r  we  pur- 


sue the  statutory  rule,  the  result  will  be  to  announce  that  Cong 
Seng,  in  the  circumstances  mentioned,  was  inadmissible  as  a 
witness  against  his  co-defendant. 

The  second  question  propounded  is  to  be  considered  in  con- 
nection with  another  statutory  provision,  but  for  the  existence 
of  which  it  is  clear  that  the  co-defendants  of  the  defendant  on 
trial  would  not  have  been  admissible  as  witnesses  in  his  behalf. 
Section  1918,  Kevised  Statutes  of  1879,  so  far  as  necessary  to 
quote,  is  as  follows:  "  'No  person  shall  be  incompetent  to  testify 
as  a  witness  in  any  criminal  cause  or  prosecution  by  reason  of 
being  the  person  on  trial  or  examination,  .  .  .  provided  that 
no  person  on  trial  or  examination  .  .  .  shall  be  required  to 
testify,  but  any  sucii  person  may,  at  the  option  of  the  defend- 
ant, testify  in  his  behalf,  or  on  behalf  of  a  co-def'jndant." 

I  do  not  find  that  this  section  has  ever  received  construction, 
or  to  have  been  even  so  much  as  alluded  to  in  the  course  of 
judicial  investigation.  The  case  of  State  v.  Martin,  74  Mo., 
547,  decided  in  1881,  cited  by  the  attorney-general,  makes  no 
allusion  to  this  section,  but  adheres  to  the  rule  announced  in 
State  V.  Roberts,  supra,  declaring  that  such  rule  is  recognized 
in  the  section  already  discussed. 

Xow,  to  the  section  under  discussion.  Taking  this  section 
in  its  literal  acceptation  it  must  be  confessed  that  it  only  ap- 
plies to  "  the  person  on  trial  or  examination."  "  Such  a  per- 
son," i.  e., "  on  trial  or  examination,"  "  may,  at  the  option  of  the 
defendant,  testify  in  his  behalf,  or  on  behalf  of  a  co-defendant." 
Taken  as  it  reads,  this  section  would  not  only  bear  the  mean- 
ing just  attributed  to  it,  but  would  allow  a  defendant  "  on  trial 
or  examination"  to  decide  whether  \m co-dffendant &\\on\(\.  tes- 
tify in  his  behalf  or  not^  which  the  legislature  evidently  did 
not  mean.  If  the  legislature,  just  after  the  words  "  required 
to  testify,"  had  simply  said  "  but  the  defendant  himself  may 
testify  in  his  behalf,  or  on  behalf  of  a  co-defendant,"  there 
would  not  have  been  such  ambiguity  as  that  last  mentioned. 
But,  coming  to  the  precise  point,  it  is  evident  from  what  has 
been  said  that  the  section  was  very  slackly  drawn.  At  the 
common  law,  the  central  idea  was  to  prohibit  a  parti/  to  the 
record  from  testifying.  People  v.  Hill,  10  Johns.,  95.  That  pro- 
hibition no  longer  prevails.  On  the  contrary,  the  controlling 
principle  of  the  section  under  discussion  is  to  remove  the  an- 


414 


AMERICAN  CRIMINAL  REPORTS. 


cient  landmarks  of  evidence,  and  to  make  it  entirely  optional 
whether  a  defendant,  in  any  given  criminal  case,  shall  bear 
witness  for  himself  or  for  his  fellows.  Bearing  this  in  mind, 
it  is  altogether  inconceivable  that  the  legislature  intended  that 
a  defendant  might  testify  in  his  own  behalf  and  on  behalf  of 
those  tried  with  him,  and  yet  be  denied  the  privilege  of  testi- 
fying for  his  co-defendant,  or  of  having  the  latter  testify  for 
him  when  their  trials  are  separate.  Tuch  a  construction  would 
be  an  absurdity',  contrary  to  reason,  and  which  could  not  be 
attributed  to  a  man  in  his  right  senses.  State  v.  Uayes,  81  Mo., 
585.  Un  the  other  hand,  if  a  different  construction  be  given 
that  section,  such  a  construction  accords  well  with  its  evident 
fundamental  purpose, —  that  of  being  a  remedial  section,  giving 
a  testifying  capacity  where  none  existed  before;  therefore  to 
be  construed  liberally;  to  receive  an  equitable  interpretation 
which  will  enlarge  the  letter  of  the  act  so  as  more  effectually 
to  meet  the  beneficial  end  in  view,  and  prevent  a  failure  of  the 
remedy,  i  Kent,  Comm.,  4C5;  Smith,  Comm.,  §§  520,  547. 
In  such  cases  the  reason  of  the  law  prevails  over  its  letter,  and 
general  terms  are  so  limited  in  their  application  as  not  to  lead 
to  injustice,  oppression,  or  an  absurd  consequence;  the  pre- 
sumption being  indulged  that  the  legislature  intended  no  such 
anomalous  results.  United  States  v.  Kirhj,  7  Wall.,  4S2;  Peo- 
ple V.  IlcRoherts,  62  111.,  38;  St.  Louis  dc  S.  F.  R'y  Co.  v.  Ecans, 
85  Mo.,  329. 

Viewing  the  matter  in  this  light,  it  is  ruled  that  error  oc- 
curred in  the  refusal  to  permit  the  co-defendants  of  the  defend- 
ant to  testify  in  his  behalf,  notwithstanding  the  fact  that  they 
were  not  tried  with  him. 

2.  These  errors  are  such  as  must  needs  accomplish  a  reversal 
of  the  judgment;  and,  since  this  is  so,  it  is  not  thought  neces- 
sary to  go  into  any  extended  examination  of  this  voluminous 
record,  and  of  the  many  other  errors  which  have  al.so  been  as- 
signed, because  the  errors  already  mentioned,  being  corrected 
on  a  new  trial,  will  make  such  important  changes  in  the  pres- 
entation and  aspect  of  the  cause  as  will  probably  render  any 
observations  now  made  of  but  little  worth.  But,  passing  to  a 
few  points  which  are  deemed  proper  to  be  briefly  considered 
before  closing. 

3.  However  it  may  be  in  other  jurisdictions,  in  this  state  tne 


STATE  V.  CHYO  CHIAGK. 


415 


testi- 


wrongfulness  of  the  arrest  or"  the  defendant,  or  tlie  wrongful- 
ness of  his  detention  after  arrest,  cannot  affect  or  in  anywise 
impair  the  validity  of  the  indictment  afterwards  found  against 
him.  1  Bish.  Crim.  Proc,  §  239«.  No  constitutional  right  of 
the  defendant  was  invaded.  He  was  proceeded  against  by  in- 
dictment in  strict  conformity  to  section  12  of  our  bill  of  rights, 
and  the  validity  of  that  indictment  could  only  be  tested  by 
proceedings  immediately  connected  therewith,  and  not  by  un- 
warranted antecedent  occurrences.  The  motion  to  quash  was 
therefore  properly  overruled.  This  is  enough  to  say  on  the 
point. 

4.  This  cause  was  tried  below  in  peculiar  circumstances,  and 
under  peculiar  difficulties.  The  defendant  was  sworn,  and  tes- 
tified through  the  medium  of  an  interpreter,  lie  was  a  stranger 
in  a  strange  land.  He  was  put  on  trial  for  his  life  before  a 
court;  "  its  records  were  kept  in  unknown  characters;  its  sen- 
tences were  pronounced  in  unknown  sounds."  If,  in  ordinary 
circumstances,  where  one  is  arraigned  and  placed  on  trial,  the 
alternative  being  his  life  or  death,  the  situation  is  embarrass- 
ing, though  he  be  one  of  our  own  people,  conversant  v/ith  our 
language,  our  customs,  our  institutions  and  our  laws,  what  must 
bo  the  hapless  state  of  one  who,  lacking  all  such  immense  ad- 
vantages, is  compelled  to  undergo  a  similar  dread  ordeal;  to 
testify  to  his  innocence  and  his  allhl  by  suhdltutlon;  to  see  as 
through  a  glass,  darkly;  and  to  hear,  without  j)erceiving,  what 
to  him  are  matters  of  most  momentous  interest?  In  circum- 
stances such  as  tiicse,  this  cause  was  tried.  Placed  in  such  a 
situation,  the  defendant  had  peculiar  claims  to  protection.  He 
was  in  some  sense  the  ward  of  the  court;  and  if  ever  the 
humane  maxim  of  the  common  law  should  apply,  that  the 
court  is  counsel  for  the  prisoner,  it  ought  to  apply  in  instances 
like  the  present.  Our  statute  provides:  "  Whenever  the  court 
or  officer  by  whom  any  person  is  about  to  be  sworn  shall  be 
satisfied  that  such  person  has  any  peculiar  mode  of  swearing 
connected  with  or  in  addition  to  the  usual  form  of  administer- 
ing oaths  which  is  to  him  of  more  solemn  and  binding  obliga- 
tion, the  court  or  officer  shall  adopt  that  mode  which  shall 
appear  to  be  most  binding  on  the  conscience  of  the  person  to 
be  sworn."  Sec.  3324.  And  it  is  further  provided  that  "every 
person  believing  in  any  other  than  the  Christian  religion  shall 


■iSfl 


m 


'.:.'  i;  i 


t  i 


"if  > 

{    J    ^ 


416 


AMERICAN  CRIMINAL  REPORTS. 


be  sworn  according  to  the  peculiar  ceremonies  of  his  religion 
if  there  be  any  such  ceremonies."    Sec.  3325.     This  was  the 
rule  at  common  law.     Whart.  Crim.  Ev.,  §  354;  1  Greenl.  Ev., 
§  371;  1  Phil.  Ev.  (4th  Amer.  ed.,  Cow.  &  II.  notes),  17,  18. 

The  statute  just  quoted  is  an  emphatic  declaration  of  the 
common-law  rule.  Against  the  objection  of  the  defendant's 
counsel,  the  interpreter,  Wong  Clira  Foo,  was  sworn  in  the 
ordinary  waj'.  They  proposed  to  show,  before  he  began  his 
duties  as  interpreter,  that  the  oath  administered  was  not  bind- 
ing on  his  conscience;  that  there  was  a  form  of  oath  which 
the  witness  did  regard  as  binding, —  one  according  to  tlic 
forms  of  his  religion.  lie  had  said  that  he  had  always  taken 
the  Christian  oath  because  he  believed  in  the  Christian  God, 
but  he  did  not  deny  that  he  still  retained  the  religion  of  his 
country,  nor  state  that  he  regarded  the  form  of  oath  taken  as 
binding.  Indeed,  he  stated  that  "  the  joss-stick  burning  is  the 
true  oath  among  the  Chinese;  they  take  the  joss-stick  in  their 
hand  and  swear  to  it." 

Phillips  says:  "But,  although  a  witness  may  not  be  ques- 
tioned 5is  to  his  particular  religious  opinions,  he  may  be  asked 
whether  he  considers  the  form  of  administering  the  oath  to  be 
such  as  will  be  binding  on  his  conscience.  The  most  correct 
and  proper  time  for  asking  a  witness  whether  the  form  of  ad- 
ministering the  oath  is  such  as  will  be  binding  upon  his  con- 
science is  previous  to  the  administration  of  the  oath.  iJut  it 
may  occasionally  happen  that  the  oath  is  administered  in  the 
usual  form,  unobserved  by  the  court  or  the  counsel.  The 
question  in  such  case  ma\'  properly  be  asked  afterwards."  1 
Phillips  on  Ev.  (4th  ed.),  20. 

Owing  to  the  great  importance  to  the  defendant,  in  his  pe- 
culiar situation,  of  having  every  formula  of  the  law  strictly 
adhered  to,  I  am  of  opinion  that  a  reasonal)le  opportunity 
should  have  been  afforded  counsel  to  establish  the  position 
they  had  taken.  And  the  like  opportunity  ought  to  have  been 
afforded  them  to  show  that  the  interpreter  was  incompetent, 
and  that  he  was  not  impartial.  It  must  be  obvious  that  both 
these  questions,  the  latter  especially,  are  preliminary  to  an 
interpreter  entering  upon  the  discharge  of  his  duties.  The 
defendant  was  entitled  to  an  interpreter  at  once  capable  and 
impartial;  one  who  could  and  would  b;*  the  iii'di'im  and  con- 


w^. 


STATE  V.  CHYO  CHI  AG  K. 


417 


duit  of  an  accurate  and  colorless  transmission  of  questions  to 
and  answers  from  the  witnesses.  All  the  precautions  neces- 
sary to  attain  this  end  should  have  been  taken;  for  otherwise 
an  inter|)reter  miglit  do  the  defendant  incalculable  mischief, — 
mischief  wliich  no  subsequent  testimony  could  entirely  eradi- 
cate from  tlie  minds  of  the  jury.  A  similar  objection  to  the 
form  of  oath  administered  to  other  Chinese  witnesses  was  made, 
and  likewise  overruled.  Tlitre  was  error  in  all  these  rulings. 
T).  liUt  for  the  testimony  of  Cong  Seng,  the  accomplice,  the 
defendant  could  not  have  been  convicted.  It  was  his  testi- 
mony that  fastened  the  crime  upon  him,  Cong  Seng,  at  about 
half-past  8  o'clock  on  the  morning  of  the  murder,  was  seen 
coming  down  the  steps  from  Lou  Johnson's  house,  having  in 
one  hand  a  satchel,  and  in  the  other  a  handkerchief  up  to  his 
nose.  There  was  blood  on  the  handkerchief,  blood  on  his 
fingers,  and  blood  on  the  satchel.  He  turned,  ran  past  the 
witness  into  the  gangway  leading  into  witness'  house,  went  to 
the  hydrant,  washed  his  face  and  hands,  wiped  off  the  satchel, 
and  then  disappeared,  going  into  the  rear  of  a  saloon  on  Sev- 
enth street,  lie  was  afterwards  arrested,  on  the  3d  day  of 
June,  two  miles  south  of  ^lurphysborough,  Illinois,  having 
with  him  a  satchel,  which,  when  opened,  contained  two  re- 
volvers and  a  dirk  knife.  Taking  off  his  pants,  the  constable 
who  arrested  him  found  blood  on  his  drawers,  and  a  cut  on 
one  finger  tied  up  with  a  rag.  Cong  Seng  told  this  witness 
that  Lou  Johnson,  a  cousin  of  his,  in  St.  Louis,  owed  him  some 
money;  that  they  were  sleeping  together  in  the  same  room, 
when  a  quarrel  arose  between  them  concerning  this  money, 
and  his  cousin  was  about  to  shoot  him,  upon  which  he  stabbed 
and  killed  him  with  a  knife  in  self-defense.  He  also  told  the 
officer  that  the  long  pistol  belonged  to  the  man  he  killed. 
Similar  testimony  as  to  the  blood  on  the  drawers,  the  satchel 
and  its  contents,  the  cut  finger  tied  with  a  rag,  was  given  by 
the  marshal  of  iMurphysborough,  .Fohn  Fitzgerald,  who  also  tes- 
tified that,  when  they  approached  St.  Louis,  Daniel  McLaugh- 
lin, the  constable,  remarlced,  "  This  is  St.  Louis;"  and  Cong 
Seng  replied:  "I  know  it.  Over  there  I  will  die."  Also, 
when  asked  by  the  ofiicer  who  arrested  him,  ''  How  many  did 
this?"  he  said,  "  Nobody.  You  got  the  right  man  now."  The 
satchel  and  large  pistol  were  proven  to  have  been  those  of  Lou 
Vol.  VII  — 27 


, 


418 


AMERICAN  CRIMINAL  REPORTS. 


!'  •!  ■ 


Johnson.  In  fact,  Cong  Seng  admitted  as  tnucli.  These  facts 
alone,  aside  from  the  testimony  of  Lena  Lee,  and  aside  from 
any  confessions  by  Cong  Seng,  would  have  been  amply  suffi- 
cient to  have  convicted  him  of  the  crime  charged.  As  to  thp 
defendant,  so  far  as  the  act  of  killing  was  concerned,  he  es- 
tablished by  his  own  testimony,  as  well  as  that  of  Als  Ngan 
and  Als  Bun,  a  clear  alibi.  The  good  character  of  the  defend- 
ant was  also  established. 

The  court,  in  regard  to  the  testimony  of  Cong  Seng,  gave 
this  instruction:  "The  court  instructs  the  jury  that  the  tcsti- 
mon}'  of  an  accomplice  in  the  crime  —  that  is,  a  person  who 
aids,  assists,  encourages  and  abets  in  the  committing  of  the 
crime  —  is  admissible;  3'et  the  evidence  of  an  accomplice  in 
the  crime,  when  not  corroborated  by  the  testimony  of  some 
person  or  persons  not  implicated  in  the  crime,  as  to  matters 
material  to  tlie  issue,  ought  to  be  received  witii  great  caution 
by  the  jury,  and  they  ought  to  be  fully  satisfied  of  its  truth 
before  they  should  convict  the  defendant  on  such  testimony." 

Touching  the  testimony  of  an  accomplice,  Greenleaf  ob- 
serves: "The  degree  of  credit  which  ought  to  be  given  to  the 
testimony  of  an  accomplice  is  a  matter  exclusively  within  the 
province  of  the  jury.  It  has  sometimes  been  said  that  they 
ought  not  to  believe  him  unless  his  testimony  is  co.roborated 
by  other  evidence;  and,  without  doubt,  great  caution  in  wcigli- 
ing  such  testimony  is  dictated  b/  prudence  and  good  reason. 
But  there  is  no  such  rule  of  law;  it  being  expressly  conceded 
that  the  jury  may,  if  they  please,  act  upon  the  evidence  of  the 
accomplice  without  any  confirmation  of  his  statement.  But,  on 
the  other  hand,  judges,  in  their  discretion,  will  advise  a  jury  not 
to  convict  of  felony  upon  the  testimony  of  an  accomplice  alone 
and  without  corroboration;  and  it  is  now  so  generally  the 
practice  to  give  them  such  advice  that  its  omission  would  be 
regarded  as  an  omission  of  duty  on  the  part  of  the  judge."  1 
Greenl.  Ev.,  §  380. 

In  regard  to  these  observations.  Judge  Henry,  in  State  v. 
Jones,  QL  Mo.,  391,  says:  "It  being  the  law,  as  Mr.  Greenleaf 
in  the  above  paragraph  states,  that  one  may  be  convicted  of 
a  felony  on  the  uncorroborated  testimony  of  an  accomplice, 
makes  it  the  more  necessary  that  juries  should  be  properly 
cautioned  by  the  court  in  regard  to  such  testimony." 


STATE  V.  CHYO  CHIAOK. 


419 


Eelative  to  the  extent  of  corroboration  necessary  in  order 
to  convict,  Greenleaf  states:  "  But  though  it  is  thus  the  settled 
practice,  in  cases  of  felony,  to  require  other  evidence  in  cor- 
roboration of  that  of  an  accomplice,  yet,  in  regard  to  the  man- 
ner and  extent  of  the  corrohoratio7i  to  be  required,  learned 
judges  are  not  perfectly  agreed.  Some  have  deemed  it  suf- 
licient  if  the  witness  is  confirmed  in  any  material  part  of  the 
case;  others  have  required  confirmatory  evidence  as  to  the 
eot'iAts  delicti  only ;  and  others  have  thought  it  essential  that 
there  should  bo  corroborating  proof  that  the  prisoner  actually 
participated  in  the  offense,  and  that,  when  several  prisoners 
are  to  bo  tried,  confirmation  is  to  be  required  as  to  all  of  thera 
before  all  can  be  safely  convicted  —  the  confirmation  of  the 
witness,  as  to  the  commission  of  the  crime,  being  regarded  as 
no  confirmation  at  ixW  as  it  respects  the  prisoner.  If  two  or 
more  accomplices  are  produced  as  witnesses  they  are  not 
deemed  to  corroborate  each  other;  but  the  same  rule  is  ap- 
plied, and  the  same  confirmation  is  required,  as  if  there  were 
but  one."     1  Greenl.  Ev.,  §  381. 

In  lieg.  v.  Fader,  8  Car.  &  P.,  106,  Lord  Abinger,  C.  B., 
said :  "  It  is  a  practice  which  deserves  all  the  reverence  of 
law  that  judges  have  uniformly  told  juries  that  they  ought 
not  to  pay  any  respect  to  the  testimony  of  an  accomplice  un- 
less the  accomplice  is  corroborated  in  some  material  circum- 
stance. Now,  in  my  opinion,  the  corroboration  ought  to  consist 
in  some  circumstance  that  affects  the  identity  of  the  party 
accused.  A  man  who  has  been  guilty  of  a  crime  himself  will 
always  be  able  to  relate  the  facts  of  the  case;  and  if  the  con- 
firmation be  only  on  the  truth  of  that  history,  without  identi- 
fying the  persons,  that  is  really  no  corroboration  at  all.  The 
danger  is  that  when  a  man  is  fixed,  and  knows  that  his  own 
guilt  is  detected,  he  purchases  immunity  by  falsely  accusing 
others." 

On  one  occasion,  a  case  of  great  importance,  when  an  ac- 
complice, having  sworn  positively  as  to  several  prisoners,  was 
comtirmed  as  to  some  but  not  as  to  others,  Vaughan,  B.,  ad- 
vised the  jur}'^  to  acquit  the  latter.  This  was  done;  but  those 
as  to  whom  the  accomplice  was  confirmed  were  convicted  and 
executed.     Hex  v.  Fild,  Berks  Sp.  Ass.,  1828. 

In  another  case  Alderson,  B.,  said  to  the  jury:  "You  may 


TK'.  .  SOPlKIY  of 

niEL^W^JETY 


420 


AMERICAN  CRIMINAL  REPORTS. 


1^ 


'.  1 


,1   ""t      '  > 


legally  convict  on  the  testimony  of  an  accomplice  alone,  if 
you  can  safely  rely  on  his  testimony  j  but  I  advise  jurors  never 
to  convict  on  the  evidence  of  an  accomplice,  unless  he  be  con- 
firmed as  to  the  particular  person  vlio  is  charged  with  tlio 
offense."     Reg.  v.  WUh's,  7  Car.  &  P.,  272. 

Shortly  after,  Gurney,  B.,  said:  "I  think  it  would  be  higlily 
dangerous  to  convict  any  person  of  such  a  crime  [larceny]  on 
the  evidence  of  an  accomplice  unconfirmed  with  respect  to 
the  person  accused."     lief/,  v.  JJi/l-e,  8  Car.  &  P.,  201. 

After  quoting  from  these  cases  Wharton  remarks:  "In  the 
United  States,  although  we  have  occasionally  expressions  to 
the  effect  that  technically  an  accomplice's  unsupported  testi- 
mony will  sustain  a  conviction,  the  rule  is  generally  adopted 
that,  when  a  verdict  is  rendered  exclusively  on  such  testimony, 
it  should  be  set  aside  by  the  court,  and  that  it  is  the  duty  of 
the  judge  on  trial  to  advise  the  jury  not  to  convict  on  the  evi- 
dence of  an  accomplice  who  is  uncorroborated  as  to  the  essen- 
tial elements  of  the  case.*"  Whart.  Crim.  Ev.  (9th  ed.),  §  441. 
In  the  next  succeeding  section  the  learned  author,  continuing 
the  subject,  says:  "The  corroboration  requisite  to  validate  tlie 
testimony  of  an  alleged  accomplice  should  be  to  the  person 
of  the  accused.  Any  other  corroboration  would  be  delusive, 
since,  if  corroboration  in  matters  not  connecting  the  accused 
with  the  offense  were  enough,  a  party  who,  on  the  case  against 
him,  would  have  no  hope  of  an  escape,  couhl,  by  his  mere 
oath,  transfer  to  another  the  conviction  hanging  over  him- 
self." Thereupon  he  quotes  with  approval  from  Roscoe,  Crim. 
Ev.  (7th  ed.),  130,  where  that  eminent  text- writer,  after  an 
able  discussion  of  the  authorities,  and  the  reasons,  says: 
"There  may  be  many  witnesses,  therefore,  who  give  testimony 
which  agrees  with  that  of  the  accomplice,  but  which,  if  it  does 
not  serve  to  identifij  the  accused  parties,  is  no  corroboration  of 
the  accomplice;  the  real  danger  being  that  the  accomplice 
should  relate  the  circumstances  truly,  and  at  the  same  time 
attribute  a  share  in  the  transaction  to  an  innocent  person.  It 
may,  indeed,  be  taken  that  it  is  almost  the  universal  opinion 
that  the  testimony  of  the  accomplice  should  be  corroborated 
as  to  the  person  of  the  prisoner  against  whom  he  speaks." 
Supporting  the  same  view  of  the  law,  another  author  of  dis- 
tinction says:  "Again,  notwithstanding  some  old  cases  to  the 


STATE  V.  CHYO  CHIAGK. 


421 


contrary,  it  seoms  now  settled  that  the  corroboration  should 
.  .  .  go  to  some  circiunstances  affecting  the  identity  of  the 
accused  as  participating  in  the  transaction."  Best,  Ev.  (Ciiam- 
berlayne's  ed.),  171. 

Tested  by  these  authorities,  the  instruction  under  discussion 
cannot  be  held  to  fully  meet  legal  requirements.  It  is  faulty 
in  at  least  two  particulars:  It  fails  to  exjjlain  to  the  jury  what 
is  meant  by  the  words  "  matters  material  to  the  issue."  As  to 
what  those  matters  were  the  jury  were  left  to  giope  in  the 
dark.  It  fails  to  tell  the  jury  that,  in  order  to  the  corrobo- 
ration of  the  testimony  of  an  accomplice,  such  corroboration 
sliould  go  so  far  as  to  identify  the  person  of  the  prisoner 
against  whom  the  accomplice  speaks.  And,  speaking  for  my- 
self alone,  I  believe  that  the  jury  should  be  flatly  instructed 
not  to  convict  the  accused  on  the  uncorroborated  testimony  of 
an  accomplice.  This  position  is  supported  by  abundant  au- 
thority. AV barton  observes:  "Where  there  is  corroboration 
as  to  a  part  only  of  the  defendants,  the  later  practice,  as  is 
elsewhere  seen  more  fully,  is  to  direct  an  acquittal  of  the  de- 
fendant to  whom  the  corroboration  does  not  extend."  Whart. 
Crim.  Ev.,  §  442.  On  the  point  of  the  admission  of  an  ac- 
complice to  testify,  Chitty  aptly  says:  "The  law  confesses  its 
weakness  by  calling  in  the  assistance  of  those  by  whom  it  has 
been  broken.  It  olfers  a  premium  to  treachery,  and  destroys 
the  last  virtue  which  clings  to  the  degraded  transgressor. 
Still,  on  the  other  hand,  it  tends  to  prevent  any  extensive 
agreement  among  atrocious  criminals,  makes  them  perpetually 
suspicious  of  each  other,  and  prevents  the  hopelessness  of 
mercy  from  rendering  them  desperate."  1  Chit.  Crim.  Law, 
7G9.  Whatever  of  probative  force  the  testimony  of  an  ac- 
complice ordinarily  ought  to  have  is  greatly  weakened  by  the 
testimony  of  Cong  Seng  in  this  particular  instance,  by  his 
numerous  evasions,  contradictions,  and  by  the  physical  facts 
immediately  attendant  on  the  murder.  If,  in  any  case,  a  jury 
ought  to  be  directed  to  acquit,  except  the  testimony  of  the 
accomplice  be  corroborated  touching  the  guilt  of  the  defend- 
ant on  trial,  this  is  a  case  where  such  direction  should  be  given. 

In  passing  by  sub  silentio  numerous  other  errors  assigned, 
we  are  not  to  be  regarded  as  giving  either  sanction  or  disap- 


422 


AMERICAN  CRIMINAIi  REPORTS. 


I     ' 


proval  to  any  other  points  than  those  specially  noticed.    Sev- 
eral of  them,  however,  are  absolutely  frivolous. 
The  judgment  is  reveraed  and  the  cause  remanded. 

(All  concur  but  Norton,  C.  J.,  who  concurs  on  the  first  point, 
but  dissents  as  to  the  others. 


Kennedy  v.  State. 

(107  Ind.,  144.) 

Murder:  Killing  citizen  while  in  pursuit  of  felon  —  Right  of  citizen  to 

make  arrest  —  Ecidenec. 

1.  When  two  crimes  are  committed  both  may  be  proved.— The  ap- 

pellant was  ciiargcd  with  the  murder  of  a  citizen,  not  an  cflicer,  who 
was  pursuing  him.  Testimony  was  adduced  tending  to  prove  thut  the 
accused  was  a  member  of  a  gang  of  jHckpockets  who  were  plundering 
citizens  assembled  at  a  political  meeting ;  and  it  was  held  competent 
to  prove  that  pockets  were  picked  by  the  gang  of  which  the  accused 
was  a  member. 

2.  Murder  —  Killing  a  citizen  I'URsuinq  a  felon.— It  is  murder  for  a 

pickpocket  to  kill  a  citizer.  who  is  in  fresh  pursuit  of  him  for  the  pur- 
pose of  making  an  arrest. 
8.  Right  of  a  citizen  to  arrest  a  felon.— A  citizen  who  has  knowl- 
edge of  the  commission  of  a  felony  may,  upon  fresh  pursuit,  lawfully 
arrest  the  felon  without  a  warrant. 

.Appeal  from  the  Decatur  Circuit  Court. 

J.  J.  Spnnn,  J.  Q.  Thomas,  IF.  A.  Moore  and  J.  0.  Marshall, 
for  appellant. 

F.  T.  llord,  attorney-general,  M.  D.  TacJcett,  prosecuting 
attorney,  J.  D.  M'dlei',  F.  F.  Gavin  and  W.  B.  Ilord,  for  the 
state. 

Ellio'it,  J.  On  the  1st  day  of  November,  18S4,  a  political 
meeting  was  held  in  the  city  of  Greensburg,  and  a  great  crowd 
of  peoi)le  gathered  to  hear  the  speaker,  who  addressed  them 
from  a  carriage  standing  on  one  of  the  streets  of  the  city. 
Piclcpockets  plied  their  vocation,  crowding  and  jostling  through 
the  throng.  They  were  at  least  four  men  engaged  in  picking 
pockets,  and  they  acted  in  concert.  The  clerk  of  one  of  the  hotels 


KENNEDY  r.  STATE. 


423 


tl.    Sev- 


in  Greensburg  testifies  that  four  men  became  guests  of  the  hotel 
early  on  the  morning  of  the  1st  day  of  November,  three  of 
tliera  taking  rooms,  and  tiio  other  occupying  a  chair  in  the  of- 
lice.  The  appellant  is  identified  by  the  hotel  clerk  as  one  of 
these  persons,  and  a  police  oHicer  of  Cincinnati  testifies  that  the 
appellant  told  him  several  days  before  the  1st  day  of  November 
tliat  he  intended  to  be  at  the  meeting  in  Greensburg  on  that 
day.  Charles  Wallace  was  called  as  a  witness  by  the  state, 
and  declined  to  testify  as  to  what  occurred  in  the  throng  where 
the  pockets  were  picked,  but  testified  that  when  he  was  ar- 
rested Kennedy  was  with  him,  and  was  the  person  nearest  to 
him  at  the  time.  The  constable,  Anderson,  testified  that  he 
arrested  "Wallace,  and  at  the  time  was  struck  on  the  head  by 
the  man  nearest  Wallace  with  a  revolver,  and  fell  to  his  knees. 
Quite  a  number  of  witnesses  who  had  their  pockets  picked 
swore  that  they  were  jostled  in  the  crowd  by  four  men,  and 
many  of  them  testified  that  Kennedy  was  one  of  the  four. 
David  Baker,  the  man  who  was  kdled,  as  the  state  charges, 
by  Kennedy,  was  in  the  throng  not  far  from  the  carriage  in 
which  the  speaker  who  made  the  address  was  standing.  Some 
one  attempted  to  pick  l>aker's  pocket,  and  some  one  did  pick 
the  pocket  of  Mr.  Slocuni,  standing  near  by,  whereupon  an 
alarm  was  raised  that  there  were  pickpockets  at  work  in  the 
crowd.  The  four  men  who  were  engaged  in  the  work  of  pick- 
ing pockets  then  made  their  way  out  of  the  throng,  and  were 
followed  by  the  deceased  and  Henry  Woodfill.  These  two 
men.  Baker  and  Woodfill,  followed  the  men  whom  they  sup- 
posed to  be  pick|)ockets  for  some  distance,  but  ceased  pursuit 
for  a  little  time.  They  resuii«?d  it,  however,  after  arming 
with  revolvers,  and  were  joined  by  the  constable,  Anderson, 
and  perhaps  others.  After  the  constable  had  seized  Wallace, 
the  man  who  was  with  him  fled,  and  was  pursued  by  Baker 
and  other  citizens.  In  the  course  of  the  pursuit  one  or  more 
shots  were  fired  by  the  pursuers,  and  a  shot  was  fired  by  the 
pursued,  which  killed  Baker  almost  instantly.  Many  persons 
joined  in  the  chase,  and,  prior  to  any  shooting,  the  men  fol- 
lowed by  the  constable  and  those  with  him  were  commanded 
to  halt,  and,  according  to  many  of  the  witnesses,  outcries 
of  "  Catch  them,"  "  Halt,"  "  They  are  thieves,"  or  similar  cries, 
were  made  by  persons  on  the  street. 


424 


AMEllICAN  CRIMINAL  REPORTS. 


'i-1 


0i 


'  I 
I 


i:    (!i 


.  .   .J 
\\ 


1 


Tho  trial  court  permitted  the  state  to  prove  by  several  per- 
sons that  their  pockets  were  picked  in  tho  crowd  gatheroil 
about  the  speaker  on  the  evening-  of  November  1st.  In  tliis 
there  was  no  error.  Tlicre  was  evidence  clearly  tending  to 
identify  the  appellant  as  one  of  the  gang  of  robbers  wlio  were 
l)luadering  the  people.  Several  witnesses  identify  him  by  his 
personal  appearance  and  his  dress;  several  quite  positively 
identify  Charles  Wallace  as  one  of  the  gang.  Wallace  him- 
self swears  that  Kennedy  was  with  him  at  tho  time  of  his  ar- 
rest, a  few  minutes  after  tho  robberies  were  committed;  and 
many  other  witnesses  declare  that  Xennetly  is  the  man  who 
struck  the  constable  while  arresting  Wallace,  and  shot  JJaker.  It 
was  therefore  perfectly  proper  for  tho  court  to  permit  the  evi- 
dence to  go  to  the  jury,  for  it  is  quite  well  settled  that,  whore 
there  is  any  positive  circumstantial  evidence  connecting  a 
party  with  a  material  and  relevant  occurrence,  it  is  proper  to 
submit  evidence  of  that  occurrence  to  the  triers  of  the  fact. 
The  evidence  that  robberies  had  been  committed  was  relevant 
and  material,  and  so  was  evidence  connecting  Ivennedy  with 
those  felonies.  If  Kennedy  was  one  of  the  four  engaged  in 
picking  pockets,  then  the  constable,  and,  indeed,  the  citizens 
IJaker  and  Woodfill,  had  a  riglit  to  arrest  him  upon  fresh  pur- 
suit, without  a  warrant.  In  this  instance  tho  evidenci'  i' 
strong  against  the  accused,  for  here  an  attempt  w  's  nt  lu  to 
pick  tho  pocket  of  Baker;  that  of  Slocum  was  p'  '  ar  by; 

and  WoodHlI,  who  joined  Ijaker  in  tlie  pursuit,  also  been 

robbed;  so  that  these  men  not  onlv  had  a  right  arrest  the 
felons,  but  it  was  ilieir  duty  to  do  so  under  the  h^ng-s  tied 
rule  thus  stated  in  one  of  the  old  books:  "All  persons  what- 
soever who  are  present  when  a  felony  is  connritted,  or  a  dan- 
gerous wound  given,  are  obliged  to  apprehend  the  offender; 
otherwise  they  are  liable  to  be  fined  and  imprisoned  for  the 
neglect."  Law  of  Arrest,  200;  1  Chit.  Crim.  Law,  10;  1  Bish. 
Crim.  Proc,  ^§  164,  1G5.  As  a  citizen  who  sees  a  felony  com- 
mitted has  a  right  to  apprehend  the  felon,  the  wrong-doer  is 
guilty  of  murder  if  he  slays  him  while  engaged  in  tho  exer- 
cise of  that  right.  It  is  therefore  competent  to  prove  the  com- 
mission of  a  distinct  felony,  if  witnessed  by  a  citizen,  for  the 
purpose  of  showing  that  the  citizen  was  engaged  in  the  per- 
formance of  his  duty  when  slain  by  the  felon.     Here,  too,  wc 


KENNEDY  i'.  STATE. 


425 


have  another  element  making  strongly  against  the  accusetl,  for 
here  the  ofllcer  whoso  sworn  duty  it  was  to  arrest  and  bring 
the  od'ender  to  justice  was,  with  the  citizen  who  lost  his  life, 
in  ])ursuit  of  the  criminal,  and  that  officer  had  been  struck 
with  a  weapon  while  engaged  in  the  performance  of  his  duty. 
A  stronger  case  for  the  application  of  the  rule  can  scarcely  bo 
imagined. 

It  is  not  necessary  that  an  offender  whom  a  citizen  under- 
takes to  arrest  should  be  connected  with  the  felony  by  direct 
evidence.  It  is  sufficient  if  the  evidence  supplied  by  circum- 
stances establishes  this  connection;  and  in  this  instance  we 
have  both  kinds  of  evidence,  strongly,  if  not  conclusively,  con- 
necting Kennedy  with  all  the  felonies  that  were  committed. 
With  many  of  them  he  was  connected  by  direct  evidence,  and 
the  circumstances  fully  justify  the  inference  that  ho  was  con- 
nected with  them  all.  No  other  party  of  men  is  shown  to 
have  acted  as  the  party  with  which  he  was  connected  did  act, 
and  the  just  iuCerence  is  that  the  members  of  that  party  com- 
mitted all  of  the  felonies.  At  all  events  there  was  evidence 
so  connecting  all  of  the  party  of  which  Kennedy  was  a  mem- 
ber with  all  the  felonies  —  thirteen  in  number —  as  to  make  it 
proper  to  leave  the  question  to  the  jur^'. 

We  have  no  doubt  tiiat  the  general  rule  is  that  one  distinct 
felony  cannot  be  established  by  proof  of  another  crime,  but 
to  this  general  rule  there  are  very  man}'  and  very  impor- 
tant exceptions.  One  of  these  exceptions,  as  well  settled  and 
known  as  the  rule  itself,  is  that  where  two  crimes  are  con- 
nected both  may  be  proved.  This  familiar  doctrine  applies  to 
this  case.  Here  the  citizen  knew  of  the  perpetration  of  a 
crime,  and  started  in  pursuit  of  the  perpetrator;  so  that,  to 
show  that  he  was  seeking  to  apprehend  the  proper  person,  it 
was  competent  to  prove  that  a  felony  had  been  recently  com- 
mitted, and  that  the  pursuit  was  fresh.  It  would  be  impossi- 
ble for  a  man  to  justify  an  arrest  unless  he  were  permitted  to 
prove  that  a  felony  had  been  committed,  and  so,  too,  would  it 
be  impossible  for  the  state  to  make  out  the  crime  of  murder 
unless  evidence  were  permitted  to  go  to  the  jury  to  prove  that 
the  person  killed  was  pursuing  a  felon.  An  accused  cannot 
deprive  the  state  of  the  right  to  give  evidence  tending  to  show 


.1 


426 


AMERICAN  CBIMINAL  REPORTS. 


i 


I  " 


1  « 


that  the  pursuit  was  rightful,  by  urging  that,  in  proving  that 
fact,  proof  is  made  of  a  distinct  folony. 

The  court  gave  this  instruction : 

"  But  the  hiw  does  not  require  impossibilities  in  criminal 
cases,  and  therefore  does  not  require,  as  a  condition  precedent 
that  the  mind  of  a  juror  be  convinced  beyond  the  possibility 
of  a  doubt  produced  from  mere  speculation.  Whenever  ther(3 
is  a  doubt  resting  in  the  mind  of  a  juror  as  to  a  material  fact 
which  the  evidence  has  not  removed,  that  is,  a  reasonable 
doubt,  which  the  defendant  should  have  the  benefit  of,  and  if 
a  doubt  material  to  the  defendant's  guilt,  the  juror  should  not 
agree  to  a  verdict  of  guilty;  but  when  the  evidence  has  re- 
moved from  the  mind  all  reasonable  doubt,  and  the  jurors 
can  only  imagine  a  possibility  of  innocence  from  specula- 
tion, then  the  juror  is  satisfied  of  guilt  beyond  a  reasonable 
doubt." 

This  instruction  is  confused,  and  is  justly  subject  to  verbal 
criticism,  but  we  do  not  think  it  could  have  misled  the  jurv. 
It  is  evident  that  the  jury  must  have  understood  the  instruc- 
tion to  mean  that  a  si)eculative  doubt  as  to  the  possibility  of 
innocence  was  not  such  a  doubt  as  required  an  acquittal,  and, 
thus  understood,  the  instruction  correctly  asserts  the  law,  for 
all  the  authorities  agree  that  mere  speculative  doubts  are  not 
such  as  the  law  contemplates  in  providing  that  in  case  a  rea- 
sonable doubt  is  entertained  the  accused  must  go  acquit.  The 
court  did  not  tell  the  jury  that  a  doubt  may  not  arise  from 
lack  of  evidence.  On  the  contrary,  it  expressly  said  that, 
"  when  the  evidence  has  removed  from  the  mind  all  reasonable 
doubt,"  there  may  be  a  conviction;  thus  clearly  implying  that 
there  must  be  evidence  strong  enough  to  remove  all  reasonable 
doubt.  The  cases  of  JJensmore  v.  Slate,  07  Ind.,  30G;  Wi'ight 
V.  State,  CD  Ind.,  1G3,  and  Batten  v.  State,  SO  Ind.,  394,  402,  are 
therefore  not  in  point.  But  we  are  not  to  consider  the  instruc- 
tion as  if  it  stood  alone,  as  it  is  well  settled  that  all  the  in 
structions  must  be  considered  together.  Jioi/le  v.  State,  105 
Ind.,  4iJt);  Shular  v.  State,  105  Ind.,  280;  Story  v.  State,  99  Ind., 
413;  Goodwin  v.  State,  96  Ind.,  550.  The  eleventh  and  thir- 
teenth instructions  are  upon  the  same  subject  as  the  twelfth, 
the  one  copied  by  us;  and  these,  taken  in  connection  with  the 


mm 


!!qii 


KENNEDY  v.  STATE. 


427 


105 


twelfth,  so  clearly  put  the  law  before  the  jury  as  to  make  fair 
debate  impossible. 

Tlie  appellant's  counsel  assail  that  part  of  the  fifth  instruc- 
tion which  reads  thus: 

"  Where  a  felony  has  been  committed  so  recently  that  it  is 
yet  fresh,  a  private  citizen  may  pursue  the  felon,  and  arrest  him 
if  lie  attempts  to  escape;  and  if,  during  the  flight,  the  pursued 
turns  upon  his  pursuer,  and  shoots  and  kills  him,  the  killing 
will  be  one  of  the  degrees  of  felonious  hoinicide  that  I  have 
mentioned ;  and  this  without  regard  to  the  means  used  and 
efforts  being  made  to  capture  him.  Under  such  circumstances, 
the  pursued  being  a  wrong-doer,  and  his  wrongful  act  leading 
to  the  homicide,  the  law  will  not  excuse  him." 

The  objection  to  this  instrucLiou  is  thus  stated  in  counsel's 


argument : 


"The  ol)jcction  to  the  charge  is  that  it  entirely  omits  to 
state  either  that  the  killing  must  have  been  done  purposely 
and  with  premeditated  malice,  or  purposely  and  maliciously 
done,  or  voluntarily  even." 

If  this  instruction  stood  alone  it  would  not  be  vulnerable  to 
the  objection  urged,  for  it  is  very  clearly  implied  in  the  ex- 
pression, "If  the  pursued  turns  upon  his  pursuer  and  shoots 
and  kills  him  the  killing  will  be  one  of  thedegreesof  felonious 
homicide  that  I  have  mentioned,"  that  the  killing  must  be 
purposely  done.  This,  surely,  is  the  meaning  that  the  instruc- 
tion would  convey  to  the  mind  of  a  man  of  ordinary  intelli- 
gence; as  this  is  so  the  jur}''  could  not  have  been  misled. 
Boyle  V.  Slate,  s^ipraj  Louisville,  etc.,  It.  W.  Co.  v.  Faloey,  lOi 
Ind.,  405),  p.  435;  Union.  2£.  L.  Lis.  Co.  v.  Bufhunau,  100  Ind., 
G3,  p.  74;  McDonel  v.  State,  90  Ind.,  320,  p.  327.  But  we  are 
not  to  take  the  instruction  apart  from  the  others;  and,  in  defin- 
ing the  various  degrees  of  homicide,  the  court  had  very  fully 
Informed  the  jury  in  prior  instructions  what  must  b^  proved, 
and  it  was  not  necessar}'  to  repeat  the  inl'ornuUion.  Uniort^ 
M.  Z.  Ins.  Co.  V.  Buchanan,  supra,'  Boy'e  v.  State,  supra; 
Goodwin  V.  State,  supra,'  Browninyv.  Illyht,  78  Ind.,  257. 

The  other  objection  urged  is  that  the  instruction  assumes  to 
state  all  the  facts  hypothetically,  and  omits  some  that  are  es- 
sential to  a  conviction.  In  support  of  this  contention  we  are 
referred  to  Norton  v.  State,  t)8  Ind.,  347,  and  Brooks  v.  State, 


428 


AMERICA.N  CRIMINAL  REPORTS. 


i     '% 


1 


90  Ind.,  428.  But  this  argument  rests  ona  groundless  assump- 
tion. The  instruction  does  not  assume  to  state  all  ilie  facts 
which  the  state  must  prove.  On  the  contrary  it  states  an  ab- 
stract principle  of  law,  but  one  relevant  to  the  case  made  by 
the  evidence.  We  have  disposed  of  the  objections  made  to 
this  instruction,  and  in  doing  so  have  decided  all  the  questions 
which  it  is  proper  for  us  to  consider. 

A  strong  and  able  appeal  is  made  to  us  to  reverse  upon  the 
evidence;  but  this  we  cannot  do,  for  the  vci-dict  is  supported 
on  every  material  point.  Counsel,  with  vigor  and  ingenuit}', 
insist  that  the  case  is  one  of  mistaken  identity,  and  earnestly 
endeavor  to  impress  upon  our  minds  the  liability  of  witnesses 
and  jurors  to  err  in  such  matters.  We  cannot  agree  with 
counsel  that  the  question  is  simply  one  of  identity,  for  it  is  set- 
tled by  the  uncontradicted  testimony  of  Wallace,  Kennedy's 
confederate,  tl  at  Kennedy  was  nearest  him  when  Constable 
Anderson  arrested  him,  and  Kennedy's  declarations  to  the 
Cincinnati  policeman  tend  to  show  that  he  was  in  Greensbnrg 
on  that  day.  As  Kennedy  was  with  Wallace  in  the  depreda- 
tions of  that  day,  as  ho  attempted  to  rescue  the  latter  from 
arrest,  and  as  ho  was  closely  pursued  by  Baker  and  Woodlill, 
there  can  be  but  little  if  any  doubt  that  he  it  was  who  lired 
the  fatal  shot;  but  when  we  add  to  this  evidence  the  testimony 
of  the  great  number  of  witnesses  who  identity  —  some  of  them 
in  very  positive  terms  — the  appellant  as  the  man  who  did  the 
shooting,  the  conviction  that  he  slew  Baker  is  irresistible.  If 
this  be  so  he  was  justly  found  guilty  of  murder.  Judgment 
atilrmcd. 


State  v.  Mkyeu. 

(58  Vt.,  457.) 

Murder:  Juror  —  Seasonable  doubt —  Degrees  of  crime  —  Charge  of  court 

viiist  clearly  define. 

1.  Juror  —  Qualification  of  —  Opinion  —  Challenge  for  cause.—  The 
niero  roruiution  and  expression  of  an  opinion  of  a  juror  as  to  the  guilt 
of  the  accused,  based  upon  newspaper  reports,  is  not  a  disqualification ; 
but  the  opinion  must  be  an  abiding  bias  in  tlie  mind,  based  upon  the 
Bubstautial  facts  in  the  case,  in  tlie  existence  of  v,  nich  the  juror  be- 
lievea. 


ii&m 


STATE  V.  MEYER, 


429 


2.  Reasonable  doubt.— The  respondent  requester!  the  court  to  charge  the 
jury  that  "  if  they  believed  that  the  evidence,  upon  any  essential  point 
in  the  case,  admits  of  the  slightest  doubt  consistent  with  reason,  the 
prisoner  is  entitled  to  the  benefit  of  that  doubt,  and  should  be  ac- 
quitted." The  court  declined  so  to  charge,  but  instructed  the  jury 
that  if  they  believed  "  that  the  evidence  upon  an}*  essential  point  in 
the  case  admitted  of  any  reasonable  doubt  —  a  doubt  consistent  with 
reason  —  the  prisoner  is  entitled  to  the  benefit  of  it."    Held  correct.* 

».  Jurors  judoes  op  law.— There  is  no  qualification  of  the  right  of  the 
jury  in  a  criminal  cause  to  disregard  the  instructions  of  the  court  as 
to  the  law,  and  they  may  adopt  their  own  theory  of  the  law,  even  if  it 
be  more  prejudicial  to  the  respondent  than  the  law  given  them  by  the 
court. 

4.  Degrees  of  murder  —  Charge  of  court  must  clearly  define.— It 

is  the  duty  of  the  court,  upon  the  trial  of  a  defendant  for  murder,  to 
instruct  the  jury  fully  as  to  what  constitutes  each  offense,  so  that  they 
may  have  a  correct  standard  by  which  to  determine  the  dt^gi-ee.  The 
simple  reading  of  the  statute  declaring  what  is  murder  in  the  first  de- 
gree, and  the  statement  that  all  other  kinds  of  murder  are  murder  of 
the  second  degree,  is  not  a  suflQcient  explanation  or  definition  of  the 
different  degrees. 

5.  Presusiption  in  favor  of  innocence  and  of  lesser  offense.— The 

state  must  first  overcome  the  presumption  of  innocence,  and  then  show 
beyond  any  reasonable  doubt  the  degree  of  the  offense.  The  presump- 
tion is  first  in  favor  of  innocence,  and  then  of  the  lesser  degrees  of  the 
offense  in  their  order. 

Indictment  for  murder,  tried  at  the  April  term,  1885,  of  the 
county  court  for  Franklin  county,  Royce,  C.  J.,  presiding.  Ver- 
dict, guilty  of  murder  in  the  first  degree.  All  facts  upon  which 
the  decision  of  the  cause  depends  are  fully  set  forth  in  the 
opinion. 

G.  W.  Burleson,  state's  attorney  fJ..  A.  Jlall  with  him),  for 
the  state. 
Felix  IF.  McGettrich,  for  respondent. 

Walkku,  J.  1.  The  respondent  took  exceptions  to  the  de- 
cision of  the  county  court  overruling  his  challenge  for  cause 
of  the  jurors  Nahum  Ihigham,  W.  A.  Curamings,  M.  J.  Olds, 
M.  L.  Whitcombe,  F.  C.  Story,  L.  C.  Lee,  C.  W.  Peckham, 
W.  Stanley,  II.  C.  Eoby  and  Moses  Pattee.  Mr.  Brighara  and 
Mr.  Eoby  were  peremptorily  challenged  by  the  respondent, 
and  the  others  were  sworn  and  served  as  jurors  on  the  trial. 


1  See  note. 


430 


AMERICAN  CRIMINAL  REPORTS. 


\M 


if 


/?') 


Jv    V 


I' 


A  careful  examination  of  the  testimony  of  these  jurors,  given 
on  voir  dire,  shows  conclusively  that  the  opinions  which  they 
formed,  and  some  say  they  may  have  expressed,  were  founded 
upon  the  reports  which  they  had  read  in  the  St.  Alhans  Mes- 
senger and  other  county  papers,  of  evidence  purporting  to  have 
been  given  upon  the  examination  of  the  respondent  at  the 
time  of  his  arrest,  and  were  dependent  upon  the  correctness  of 
these  reports;  which  opinions,  whetlier  expressed  by  them  or 
not,  had  not,  in  the  judgment  of  these  jurors,  biased  their 
minds  so  that  the}'  could  not  try  the  case  impartially  upon  the 
evidence  given  in  court,  and  return  a  verdict  of  conviction  or 
acquittal  thereon  accordingly  as  their  minds  were  convinced 
by  it.  The  newspaper  accounts  which  they  had  read  had  evi- 
dently made  no  abiding  bias  or  conviction  in  the  jurors'  minds 
of  the  guilt  or  innocence  of  the  respondent.  The  opinions 
which  they  had  formed  were  merely  passing  or  transitory  in- 
clinations of  their  minds,  based  upon  such  accounts  as  they 
had  read;  they  had  made  no  inquiry  as  to  the  truth  of  the 
accounts;  they  had  made  no  investigation  in  reference  to  the 
crime  imputed  to  the  respondent  for  the  purpose  of  satisfying 
their  minds  as  to  his  guilt  or  innocence.  Their  opinions  were 
such  opinions  merely  as  intelligent  men  almost  irresistibly 
form  from  hearing  or  reading  newspaper  accounts  of  crime, 
relying  upon  the  truthfulness  of  the  published  accounts,  which 
are  always  subject  to  be  changed  and  altered  by  contradictory 
accounts.  Such  opinions  rarely  disqualify  intelligent  men  from 
fairly  considering  the  evidence  given  on  the  trial,  and  render- 
ing an  impartial  verdict  thereon  when  called  upon  to  act  as 
jurors.  The  question  of  the  disqualification  of  a  juror  by  the 
formation  and  expression  of  an  opinion  upon  newspaper  re- 
ports, etc.,  has  repeatedly  been  before  this  court,  and  the  law  is 
well  settled  on  that  subject  in  this  state.  In  State  v.  Mcaker, 
54  Vt.,  112,  Ross,  J.,  in  delivering  the  opinion  of  the  court, 
says  that  the  opinion,  in  order  to  disqualify  the  juror,  "  must 
bo  an  abiding  bias  of  the  mind,  based  upon  the  substantial 
facts  in  the  case,  in  the  existence  of  which  he  believes.  Such 
is  the  result  of  our  decisions  and  of  the  great  majority  of 
the  decisions  of  the  courts  of  last  resort  in  other  jurisdictions. 
.  .  .  Its  character  must  be  left  largely  to  the  determination 
of  the  court  before  which  the  trial  is  had,  upon  the  evidence 


STATE  V.  MEYER. 


481 


adduced  at  the  preliminary  examination."  Following  the 
trend  of  the  decisions  in  this  state,  and  other  decisions,  we  are 
satisfied  that  the  opinions  of  the  jurors  challenged  for  cause  in 
this  case  were  not  of  a  disqualifying  character. 

2.  The  respondent,  in  his  tenth  request,  requested  the  court 
to  charge  that  "  if  the  jury  believe  that  the  evidence  upon  any 
essential  point  in  the  case  admits  of  the  slightest  doubt,  con- 
sistent with  reason,  the  prisoner  is  entitled  to  the  benefit  of 
that  doubt,  and  should  be  acquitted."  In  respect  to  this  re- 
quest the  court,  after  having  fully  instructed  the  jury  that  the 
prisoner  was  entitled  to  the  benefit  of  every  reasonable  doubt, 
and  having  explained  to  the  jury,  satisfactorily  to  the  respond- 
ent, what  constituted  a  reasonable  doubt,  instructed  the  jury 
as  follows:  "That  request  is  sound  law,  with  this  modification: 
if  the  jury  believe  that  the  evidence  upon  an}'  essential  point 
in  the  case  admits  of  any  reasonable  doubt  —  a  doubt  consist- 
ent with  reason  — the  prisoner  is  entitled  to  the  benefit  of  it." 
To  the  court's  refusal  to  charge  in  the  language  of  the  request 
the  respondent  excepted.  The  degree  of  doubt  which  has  al- 
ways been  recognized  by  the  law,  which  the  state  must  over- 
come in  order  to  warrant  the  jury  in  finding  the  respondent 
guilty  of  the  crime  charged  in  the  indictment,  is  one  founded 
upon  reason  —  a  reasonable  doubt.  The  charge  of  the  court 
modifying  the  request,  if  not  a  substantial  compliance  there- 
with, was  in  conformity  with  the  law,  and  the  respondent  was 
not  injured  thereby.  It  was  all  he  was  entitled  to.  This  is 
not  an  age  in  which  the  protection  of  the  accused  requires  any 
lowering  of  this  degree  of  doubt  which  the  law  requires  to  be 
overcome  in  order  to  convict. 

3.  The  respondent's  counsel  next  claims  error  as  to  the  re- 
fusal of  the  court  to  comply  with  his  thirteenth  request  in 
regard  to  entertaining  doubts  as  to  questions  of  law.  The 
request  was: 

"If  the  jury  entertain  the  slightest  doubt  upon  the  questions 
of  law  presented  by  the  court,  the  prisoner  is  entitled  to  the 
benefit  of  such  doubt,  and  in  no  instance  are  they  permitted  to 
apply  any  rule  of  law  more  prejudicial  to  the  prisoner  than 
that  laid  down  by  the  court." 
The  charge  of  the  court  in  respect  thereto  was  as  follows: 
"While  it  is  my  duty  to  instruct  you  as  to  what  I  deem  to 


ll 


482 


AMERICAN  CRIMINAL  REPORTS, 


'Mo 


be  the  law,  5^et  it  is  your  right  to  jutlge  over  mo.  You  have 
the  right  to  adopt  your  theory  of  the  law  instead  of  mine,  if 
3'ou  think  proper  so  to  do,  with  this  qualification:  you  are  not 
to  adopt  any  rule  of  the  law  any  more  prejudicial  to  the  re- 
spondent than  the  law  which  has  been  laid  down  by  the  court."' 

No  more  favorable  charge  to  the  respondent  could  have 
been  given  upon  the  subject  of  the  request.  The  jury  wore 
told  that  they  could  entirely  ignore  the  court's  view  of  the 
law,  and  adopt  their  own,  except  that  they  could  not  adopt 
any  rule  more  prejudicial  to  tiie  respondent.  The  instruction 
did  not  even  require  the  jury  to  have  any  doubt  of  the  cor- 
rectness of  the  court's  view  before  rejecting  it.  lie  told  them 
that  they  had  the  absolute  right  to  adopt  their  own  theory, 
provided  it  was  not  more  prejudicial  to  the  respondent  than 
the  court's  view.  The  charge  was  cleaily  more  favorable  to 
the  respondent  than  the  request  or  the  law,  and  he  cannot 
complain.  There  is  no  qualification  of  the  right  of  the  jury, 
in  a  criminal  cause,  to  disregard  the  law  as  given  them  by  the 
court  and  adopt  their  own  theory:  and  they  may,  in  the  exer- 
cise of  this  power,  with  the  same  proi)riety,  adopt  a  rule  of  law 
more  prejudicial  to  the  respondent  as  well  as  one  less  preju- 
dicial. 

4.  The  respondent,  in  his  fifteenth  request,  requested  the 
court  to  charge  that  "if  the  jur}'  should  find  that  the  respond- 
ent killed  Herman  Krause,  in  the  absence  of  any  proof  of  mal- 
ice or  premeditation,  they  are  at  liberty  to  find  him  guilty 
of  murder  in  the  second  degree,  manslaughter,  or  to  acquit 
him."  Upon  the  subject-matter  of  this  request  the  court  read 
to  the  jury  the  statute  definiiig  what  constitutes  murder  in  the 
first  degree,  and  the  statement  of  the  statute  that  ''all  other 
kinds  of  murder  shall  be  murder  of  the  second  degree,  and 
told  them  what  was  the  punishment  for  murder  in  each  degree, 
and  what  for  manslaughter,  and  then  proceeded  to  explain  to 
the  jury  what  constitutes  the  crime  of  murder,  using  the  follow- 
ing language,  viz.: 

"  AVe  have  to  resort  to  the  common  law  to  ascertain  the  def- 
inition of  murder;  and  that  defines  it  to  be  the  unlawful  kill- 
ing, with  malice  aforethought,  of  any  human  being.  In  order 
to  constitute  the  crime  of  murder  it  must  be  committed  with 
malice  aforethought;  the  act  must  be  done  with  intent  to 


STATE  V.  MEYER. 


433 


commit  murder.  The  malice  which  the  law  requires  to  exist 
may  be  either  express  or  implied;  that  is,  either  announced  by 
some  previous  threats,  or  evidence  of  some  ill-will  that  the 
party  had  towards  the  murdered  person,  or  it  may  be  implied 
from  the  circumstances  under  which  the  killing  took  place. 
,  .  .  The  act  of  killing  must  be  intentional;  that  is,  the 
party  must  have  intended  to  commit  the  deed.  There  must  be 
premeditation,  but  there  is  no  point  of  time  in  which  this  pre. 
meditation  is  required  to  exist.  It  may  be  for  an  hour,  for  a 
day,  or  for  one  moment.  There  must  be  evidence  that  he 
meditati'd  the  act  before  the  act  was  done;  that  is  what  is  re- 
quired to  constitute  the  crime  of  murder,  in  my  judgment." 

The  court  then  explained  to  the  jury  the  crime  of  man- 
slaugliter,  and  wherein  it  differs  from  murder,  and  then,  with- 
out explaining  to  the  jury  what  constitutes  murder  in  the 
second  degree,  or  wherein  murder  in  the  second  degree  differs 
from  murder  in  the  first  degree,  he  told  the  jury  that  "  under 
the  indictment  it  is  competent  for  you  to  convict  the  respond- 
ent of  either  one  of  these  three  offenses:  murder  in  the  first 
degree,  murder  in  the  second  degree,  or  manslaughter.  You 
have  a  right  to  do  either.  But  I  have  no  hesitation  in  saying 
to  you  that  if  this  murder  was  committed, —  if  you  should  find 
beyond  a  reasonable  doubt  that  upon  the  evening  of  the  21st 
of  January  this  respondent  tired  that  bullet  into  the  head  of 
that  (Jermau  while  they  were  alone  upon  Smith's  Point,  and 
death  resulted  from  that  shot, —  in  iny  judgment,  it  is  clearly 
a  case  of  murder  in  the  first  degree.  But  still,  I  say  to  you 
that  it  is  your  right  to  find  him  guilty  of  either  one  of  these 
three  crimes,  and  it  is  competent  for  you  to  acquit  him  en- 
tirely." 

Such  was  all  the  charge  of  the  learned  judge  as  to  the  de- 
grees of  murder,  and  the  verdict  the  jury  had  a  right,  untler  the 
law,  to  return  upon  the  evidence.  AV^ithout  explaining  to  the 
jury  at  all  the  difference  between  murder  in  the  first  and  sec- 
ond degrees,  so  that  they  could  for  themselves  determine  from* 
a  consideration  of  the  evidence  what  degree  of  murder  the  re- 
spondent was  guilty  of,  if  guilty  of  murder  at  all,  the  learned 
judge  tells  them  that,  in  his  opinion,  if  the  crime  was  com- 
mitted, it  was  clearly  a  case  of  murder  in  the  first  degree;  yet 
il  was  for  them  to  determine  from  the  evidence  what  degree. 
Vol.  VII -28 


s 


i  J  llli 


434 


AMERICAN  CRIMINAL  REPORTS. 


:»  \tti 


With  the  charge  standing  as  it  was  left,  without  explanation 
as  to  what  constitutes  murder  in  the  second  degree,  this  em- 
phatic expression  of  the  judge  was  equivalent  to  an  instruction 
that,  if  the  jury  found  the  respondent  was  guilty  of  murder, 
he  was  guilty  of  murder  in  the  first  degree.  Tliey  had  been 
given  by  the  court  no  criterion  of  determining  for  themselves 
whether  the  evidence  showed  the  respondent  guilty  of  murder 
in  the  first  degree  or  second  degree.  If  it  was  the  right  of 
the  jury,  upon  the  evidence,  to  find  the  prisoner  guilty  of 
either  one  of  the  three  offenses  named,  as  the  court  told  them 
it  was,  then  it  was  the  duty  of  the  court  to  instruct  the  jury 
fully  as  to  what  constituted  each  offense,  so  that  they  might 
have  a  correct  standard  by  which  to  determine  the  degree  when 
they  had  found  the  facts  from  the  evidence.  The  reading  of 
the  statute  declaring  what  was  murder  in  the  first  degree,  and 
that  all  other  kinds  of  murder  shall  be  murder  of  the  second 
degree,  was  not  a  sufficient  explanation  of  the  two  degrees. 
The  jur}',  from  that  reading,  with  no  explanation,  would  have 
no  appreciation  of  the  distinguishing  characteristics  of  the  two 
degrees,  which  has  confessedly  been  something  of  a  puzzle  to 
lawyers  and  judges.  How  many  would  understand  from  the 
reading  of  the  statute  defining  the  first  degree  of  murder,  and 
the  phrase  "all  other  kinds  of  murder  sliall  be  murder  of  the 
second  degree,"  what  in  fact  constituted  murder  in  tlie  second 
degree?  How  many  men,  not  read  in  the  law,  would  under- 
stand from  it  that  murder  in  the  second  degree  is  the  unlawful 
killing  of  a  human  being  with  malice  aforethought,  but  with- 
out deliberation,  premeditation  or  preconcerted  design  to  kill; 
and  that  the  distinguishing  feature  of  the  two  degrees  rests  in 
the  absence  of  deliberation,  premeditation  and  preconcerted 
design  from  the  second  degree?  While  the  evidence  in  this 
case,  with  proper  instructions  to  the  jury  as  to  the  law  appli- 
cable to  murder  in  the  second  degree,  would  uphold  a  verdict 
of  murder  in  the  first  degree,  yet  we  think  that  the  jury 
should  have  had  a  fair  opportunity,  on  proper  instructions  to 
them,  of  determining  for  themselves  whether  the  evidence  was 
reasonably  inconsistent  with  the  theory  that  the  killing  of 
Krause  was  the  result  of  malice,  suddenly  provoked  at  the 
time,  without  deliberation,  premeditation  or  preconcerted  de- 
sign, which  would  be  murder  in  the  second  degree.    With  a 


STATE  V.  MEYER. 


485 


proper  explanation  to  them  of  murder  in  the  second  degree, 
the  jury,  in  their  deliberations  upon  the  evidence,  might  have 
warrantably  reached  a  different  result. 

Under  an  indictment  for  murder,  where  the  jury  may  convict 
the  respondent  of  murder  in  the  first  degree,  second  degree 
or  manslaughter,  the  state,  to  convict  of  murder  in  the  first 
degree,  must  first  overcome  by  evidence  the  presumption  of 
innocence  that  always  shields  the  respondent  till  the  contrary 
is  proved  beyond  a  reasonable  doubt;  and  when  that  is  over- 
come, the  state  must  next  overcome  every  reasonable  doubt 
that  the  crime  which  the  respondent  committed  is  not  man- 
slaughter, nor  murder  in  the  second  degree,  advancing  from  the 
lesser  to  the  greater  crime;  the  presumptions  being  first  in 
favor  of  innocence,  and  then  of  the  lesser  crimes,  in  their  order. 

If,  upon  a  proper  explanation  of  murder  in  the  first  and  second 
degrees,  the  jury  might  have  had  any  reasonable  doubt  as  to 
the  degree  of  murder,  the  respondent  was  entitled  to  the  benefit 
of  it,  as  he  was  to  the  benefit  of  tlic  reasonable  doubt  us  to 
whether  he  is  guilty  of  any  crime  at  all  under  the  indictment. 
And  it  is  the  duty  of  the  trial  judge  to  so  fully  instruct  the 
jury  upon  every  degree  and  kind  of  crime  of  which  the  re- 
spondent may  be  convicted,  under  the  indictment,  as  to  give 
the  respondent  the  benefit  of  having  the  evidence  considered 
by  the  jury  under  a  full  knowledge  of  the  law  as  to  the  essen- 
tial characteristics  of  each  kind  and  degree  of  crime  for  which 
a  verdict  may  be  returned  against  him,  so  that  he  may  have 
the  benefit  of  every  reasonable  doubt  that  may  arise,  both  as 
to  the  commission  of  the  crime  and  as  to  the  kind  and  degree 
of  it. 

As  an  abstract  proposition,  the  charge  of  the  presiding 
judge,  explaining  simply  what  constituted  murder  at  common 
law,  is  unexceptionable;  but,  as  applicable  to  this  case  under 
our  statute,  creating  two  degrees  of  murder,  it  was  erroneous. 
The  respondent  was  entitled  to  a  full  explanation  to  the  jury 
of  what  constituted  each  degree  of  murder,  and  the  distin- 
guishing characteristics  of  each.  This  the  learned  judge  wholly 
neglected  to  give,  and,  as  this  neglect  and  omission  might  have 
been  prejudicial  to  the  respondent,  it  was  error. 

The  respondent's  exception  to  the  refusal  of  the  court  to 
charge  as  requested  in  his  fifteenth  request,  and  to  the  charge 


m  ?:' 


43G 


AMERICAN  CRIMINAL  REPORTS. 


as  given  upon  the  subject-matter  of  the  request,  is  sustained. 
The  other  subjects  involved  in  the  points  of  defense,  as  show  n 
by  the  bill  of  exceptions,  it  is  not  necessary  to  consider.  The 
result  is  the  respondent's  exceptions  are  sustained,  verdict  sot 
aside  and  a  new  trial  granted. 


WS 


t    ^^ 


^07F..—  Reasonable  doubt.—  In  Carr  v.  State,  28  Neb.,  749,  the  defendant 
assigned  error  on  the  following  instruction :  "You  are  instructed  that  by 
a  reasonable  doubt  is  meant  such  a  doubt  as  naturally  arises  in  the  mind  of 
a  juror,  from  a  consideration  of  the  testimony,  as  would  cause  iiim  to 
pause  and  hesitate  before  acting  in  the  most  itnportant  affairs  of  life.  It 
is  a  doubt  having  a  reason  for  its  basis  derived  from  the  testimony,  and  a 
doubt  for  the  having  of  which  the  juror  can  give  a  reason  derived  from 
the  testimony.  To  be  convinced  beyond  a  reasonable  doubt  is  to  have  the 
judgment,  the  reason  and  the  understanding  satisfied  of  the  truth  of  the 
facts,  so  that  an  ordinarily  reasonable  and  cautious  man  would  unhesitat- 
ingly act  by  the  proof  in  the  most  vital  and  important  affairs  of  human 
life.  And  unless  in  this  case  your  judgment  and  reason  and  understand- 
ing is  so  convinced  by  the  testimony  of  every  fact  necessary  to  constitute 
any  of  the  degrees  of  the  crime  as  defined  in  those  instructions,  you  must 
acquit  the  defendant."  In  disapproval  of  this  instruction,  Keese,  C.  J., 
speaking  for  the  court,  says:  "  While  not  couched  in  exactly  the  same  lan- 
guage, this  instruction  is  in  substance  the  same  as  the  third  iiisUuction 
given  to  the  jury  and  ref-rred  to  in  Cowan  v.  State,  23  Nob.,  519.  The 
clause  contained  in  the  instruction  in  that  case  which  induced  this  court  to 
reverse  the  judgment  was:  '  It  is  a  doubt  for  having  which  the  jury  can 
give  a  reason  based  upon  the  testimony.'  In  the  case  at  bar  the  language 
is:  '  It  is  a  doubt  having  a  reason  for  its  basis  derived  from  the  testimony, 
and  a  doubt  for  the  having  of  which  the  jury  can  give  a  reason  derived 
from  the  testimony.'  We  have  again  examined  the  question,  and  are 
satisfied  with  the  holding  in  Cowan  v.  State.  It  is  true  that  the  instruc- 
tion is  not  entirely  without  support,  and  may  be  found  substantially  in 
Sackett,  Instructions  to  Juries,  483,  but  upon  an  examination  of  the  author- 
ities cited  by  the  author,  we  do  not  think  tliey  support  tlie  text.  W^e  have 
not  at  hand  the  edition  of  Greenloaf's  work  on  Evidence  referred  to,  but 
upon  an  examination  of  the  fourteenth  edition  we  are  satisfied  section  29, 
note  2,  of  that  edition  is  the  one  referred  to  by  the  author.  In  the  text 
Greonleaf  says:  '  But  in  criminal  trials  the  party  accused  is  entitled  to  the 
benefit  of  the  legal  presumption  in  favor  of  innocence,  which  in  doubtful 
cases  is  always  sufficient  to  ti.rn  the  scale  in  his  favor.  It  is  therefore  a 
rule  of  criminal  law  that  the  guilt  of  the  accused  must  be  fully  proved. 
Neither  a  mere  preponderance  of  evidence,  nor  any  weight  of  preponderant 
evidence,  is  sufficient  for  the  purpose,  unless  it  generate  a  full  belielf  of 
the  fact  to  the  exclusion  of  all  reasonable  doubt.'  The  note  consists  in 
part  of  an  extract  from  the  very  able  charge  of  Chief  Justice  Shaw,  given 
to  the  jury  on  the  trial  in  the  case  of  Com.  v.  Webnter,  5  Cush.,  320,  as 
well  as  a  number  of  extracts  from  decisions  in  other  cases.  Tlie  quotation 
from  the  instructiou  is  aa  follows :  '  Then  what  is  a  reasonable  doubt?    It 


STATE  V.  MEYER. 


431 


is  a  term  often  u'-od,  probably  pretty  well  understood,  but  not  easily  de- 
fined. It  ia  not  mere  possible  doubt ;  because  everything  relating  to  human 
affairs  and  depending  on  moral  evidence  is  open  to  some  possible  or  imag- 
nnry  doubt.  It  is  that  state  of  the  case  which,  after  the  entire  comparison 
and  consideration  of  all  the  evidence,  leaves  the  minds  of  jurors  in  that 
condition  that  they  cannot  say  thoy  feel  an  abiding  conviction  to  a  moral 
certainty  of  the  truth  of  the  charge  The  burden  of  proof  is  upon  the 
prosecutor.  All  the  presumptions  of  law,  independent  of  evidence,  are  in 
favor  of  innocence ;  and  every  person  is  presumed  to  be  innocent  until  he 
is  proved  guilty.  If,'upon  such  proof,  there  is  reasonable  doubt  remaining, 
the  accused  is  entitled  to  the  benefit  of  it  by  an  acquittal ;  for  it  is  not  suf- 
ficient to  establish  a  probability,  though  a  strong  one,  arising  from  the  doc- 
trine of  chances,  that  the  fact  charged  is  more  likely  to  be  true  than  the 
contrary,  but  the  evidence  must  establiyh  the  truth  of  the  fact  to  a  reason- 
able and  moral  certainty —  a  certainty  that  convinces  and  directs  the  un- 
derstanding, and  satisfies  the  reason  and  judgment  of  those  who  are  bound 
to  act  conscientiously  upon  it.  This  we  take  to  be  proof  beyond  a  reason- 
able doubt ;  because  if  the  law,  which  mostly  depends  upon  considerations 
of  a  moral  nature,  should  go  further  than  this,  and  require  absolute  cer- 
tainty, it  would  exclude  circumstantial  evidence  altogether.'  While  the 
rule  stated  by  Chief  Justice  Shaw  was  applied  to  a  case  depending  upon 
circumstantial  evidence,  yet  in  the  main  we  think  it  is  applicable  to  all 
cases  where  the  issue  of  the  guilt  or  innocence  of  the  accused  is  presented. 
The  reasonable  doubt  is  '  that  state  of  the  case  which,  after  the  entire 
comparison  and  consideration  of  all  the  evidence,  leaves  the  minds  of  the 
jurors  in  that  condition  that  they  cannot  say  they  feel  an  abiding  convic- 
tion to  a  moral  certainty  of  the  truth  of  the  charge.'  All  presumptions  of 
law.  independent  of  evidence,  are  in  favor  of  innocence.  Every  person  is 
presumed  to  be  innocent  until  he  is  proved  guilty.  The  burden  of  proof 
is  upon  the  prosecution,  not  only  to  remove  this  presumption,  but  to  satisfy 
the  minds  and  consciences  of  the  jurors,  beyond  all  reasonable  doubt,  of 
the  guilt  of  the  accused,  upon  the  whole  case.  They  must  feel  satisfied  to 
a  moral  certainty  of  his  guilt,  or  they  must  acquit,  at  least  of  the  degree 
wherein  this  want  of  certainty  exists. 

"An  instruction  substantially  like  the  one  given  in  the  case  at  bar  was 
given  by  Judge  Speer  in  United  States  v.  Jones,  31  Fed.  Rep.,  718,  and  in 
United  States  v,  Jackson,  39  Fed.  Rep.,  503,  but  we  do  not  believe  they  cor- 
rectly state  the  law.  In  People  v.  Steubenvoll,  28  N.  W.  Rep.,  881,  the 
supreme  court  of  Michigan  seems  to  concede  that  the  language  of  an  in- 
struction similar  t6  the  one  under  consideration  was  not  strictly  accurate, 
but  lield  that  it  produced  no  practical  consequence  in  the  case.  In  Brown 
V.  State,  Ti  N.  E.  Rep.,  900,  the  supreme  court  of  Indiana  refused  to  approve 
an  instruction  that  the  doubt  of  the  defendant's  guilt  must  arise  out  of  the 
evidence,  and  be  such  as  to  cause  a  prudent  man  to  hesitate  before  acting, 
etc.  The  court  says :  '  It  is  not  the  law  that  in  order  to  justify  an  acquit- 
tal the  doubt  must  arise  out  of  the  evidence,  and  be  such  as  to  cause  a  pru- 
dent man  to  hesitate.  The  doubt  may  arise  from  the  want  of  evidence. 
In  order  to  justify  a  conviction  the  evidence  must  be  such  as  to  produce  in 
the  minds  of  prudent  men  such  certainty  that  they  would  act  upon  the 
conviction  produced  without  hesit  tion  in  their  own  most  important  af- 


43S 


AMERICAN  CRIMINAL  REPORTS. 


!l'^ 


i  i 


:j;^ 


ii'f 


iii'<'A' 


'^'     i 


fairs.'  We  have  examined  many  of  the  definitions  of  a  'rensonnblo 
doubt,'  and  we  are  persuaded  that  none  of  them  are  better  or  more  exn(  t 
than  that  of  Cliief  Justice  Shaw  in  the  case  of  Com.  v.  Webatcr.  Wo  are 
therefore  content  to  leave  tlie  definition  substantially  as  there  found." 

In  lUcMeen  v.  Com.,  114  Pa.  St.,  301,  it  was  urged  that  the  court  erred 
in  saying  to  the  jury  that  "  you  should  be  convinced  as  jurors  where  you 
would  be  convinced  as  citizens,  and  you  should  doubt  as  jurors  only  wiiero 
you  would  doubt  as  men."  "  The  idea  embodied  in  this  language,"  says  tlio 
court,  "  appears  to  have  originated  with  Chief  Justice  Gibson,  who  said  in 
Com.  V.  Uarmcni,  4  Pa.  St.,  at  page  2Ti,  that  a  juror  '  is  not  at  liberty  to 
disbelieve  as  a  juror  while  he  believes  as  a  man,' "  The  learned  chief  jus- 
tice applied  this  language  to  the  evidence  in  the  case,  and  in  this  connection 
the  remark  was  entirely  proper.  In  the  subsequent  case  of  Fife  v.  Com., 
29  Pa.  St.,  420,  it  was  held  that  similar  language,  although  liable  to  be  mis- 
understood by  a  jury,  is  not  erroneous  as  a  matter  of  law.  Yet  even  thi- 
ruling,  it  appears  to  me,  requires  some  qualification.  If  it  does  mislead 
the  jury,  or  is  so  used  that  it  is  likely  to  mislead  the  jury,  we  regard  it  as 
error.  But  in  the  case  in  hand,  as  in  Com.  v.  Hurman,  the  language  tised 
was  used  in  connection  with  the  evidence.  Thus  the  learned  judge  said  in 
the  sentence  immediately  preceding  tiie  one  assigned  as  error:  "This  rea- 
sonable doubt  is  not  one  the  jury  will  reach  out  for  to  relieve  them  from 
finding  a  verdict  of  guilty,  but  such  a  doubt  as  is  left  from  the  failure  of 
the  evidence  to  convince  your  minds  of  the  guilt  of  the  defendant.''  Un- 
doubtedly a  juror  should  be  convinced  from  the  evidence  where  he  would 
be  convinced  as  a  man,  and,  when  the  language  is  applied  in  this  way,  we 
see  no  technical  error.  But,  as  was  said  in  Fife  v.  Com.,  siqjra,  it  is  an  ex- 
pression that  is  liable  to  mislead  a  jury,  and  for  my  own  part  I  could  wish 
it  had  never  found  its  way  in  the  books.  Severed  from  its  connection,  it  is 
easy  to  see  how  a  jury  may  be  misled.  There  are  many  cases  in  which 
jurors,  as  men,  may  believe  a  person  on  trial  for  a  crime  to  bo  guilty,  when 
the  evidence  in  the  case  would  not  warrant  a  conviction. 

To  warrant  a  conviction  upon  circumstantial  evidence  the  circumstances, 
when  taken  together,  must  be  of  so  conclusive  a  nature  as  to  show  beyond 
a  reasonable  doubt  that  the  accused,  and  no  other  person,  committed  the 
offense.     Walbridge  v.  State,  13  Neb.,  236. 

A  reasonable  doubt  must  be  such  a  doubt  as  fairly  and  naturally  arises  in 
the  mind  of  the  jury  after  fully  and  carefully  weighing  and  considering 
the  evidence  which  has  been  introduced,  viewed  in  all  the  light  and  circum- 
stances surrounding  the  case  {State  v.  Stewart,  52  la.,  284):  and  it  must  arise 
from  a  candid  and  impartial  consideration  of  all  the  evidence  in  the  case. 
State  V.  Pierce,  65  la. ,  85. 

The  jury  must  not  be  satisfied  by  a  mere  probability  of  the  truth  of  the 
charges  in  the  indictment,  but  the  evidence  must  produce  in  their  minds  an 
assurance  and  certainty  of  guilt  beyond  a  reasonable  doubt,  before  they  can 
pronounce  the  accused  guilty.     United  States  v.  Searcey,  26  Fed.  Rep.,  435. 

It  is  not  a  mere  guess  —  a  mere  surmise  —  that  one  may  not  be  guilty  of 
what  he  is  charged  with ;  it  is  a  doubt  that  a  jury  may  entertain,  as  reason- 
able men,  after  a  thorough  review  and  consideration  of  the  evidence  —  a 
doubt  for  which  a  good  reason  arising  from  the  evdence  can  be  given. 
United  States  v.  Johnson,  20  Fed.  Rep,,  682. 


PEOPLE  V.  LANGTON. 


480 


People  v.  Lanoton, 

(67  Cal.,437.) 

Mobdeb:   Presumption    of  intent  — Imtntcliona  — Degrees   of   crime  — 

Drunkenness, 

1.  Presumition  of  intent— Instructions.— It  is  not  error,  in  a  murder 

trial,  to  instruct  the  jury  that  "a  person  is  presumed  to  intend  what 
his  acts  indicate  his  intention  to  have  been;  and  if  the  defendant  fired 
a  loaded  pistol  at  the  deceased  and  killed  him,  the  law  presumes  that 
the  defendant  intended  to  kill  the  deceased ;  and,  unless  the  defendant 
can  show  that  liis  intention  was  other  than  his  act  indicated,  the  law 
will  not  hold  him  guiltless.' 

2.  Degrees  ok  crime  —  Drunkenness  of  defendant.— Drunkenness  on 

part  of  defendant  cannot,  in  a  murder  trial,  form  a  legitimate  matter  of 
inquiry  as  between  the  crime  of  murder  in  the  second  degree  and  that 
of  manslaughter ;  for  manslaughter  is  the  unlawful  killing  of  a  human 
being  without  malice,  express  or  implied,  and  without  any  mixture  of 
deliberation.' 

Appeal  from  a  judgment  of  the  Superior  Court  of  Sierra 
County,  a'nd  from  an  order  refusing  a  new  trial. 

Van  Clief  cj&  Wehe,  for  appellant. 

Marshall,  attorney-general,  and  Stanley  A.  Smith,  for  re- 
spondent. 

Morrison,  C.  J.  Defendant  was  prosecuted  for  the  crime 
of  murder,  and  was  convicted  of  murder  in  the  second  degree. 
On  the  trial  of  the  case  in  the  court  below  the  following  in- 
struction was  given  to  the  jury: 

"Every  person  is  presumed  to  intend  what  his  acts  indicate 
his  intention  to  have  been;  and  if  the  defendant  fired  a  loaded 
pistol  at  the  deceased  and  killed  him,  the  law  presumes  that 
the  defendant  intended  to  kill  the  deceased;  and,  unless  the 
defendant  can  show  that  his  intention  was  other  than  his  act 
indicated,  the  law  will  not  hold  him  guiltless." 

"  Unless  the  defendant  can  show  that  his  intention  was  other 
than  his  acts  indicated,  the  law  will  not  hold  him  guiltless,"  is 
the  portion  of  the  instruction  which  struck  us  at  first  view  as 
erroneous.  It  might  be  claimed  that  the  defendant  was  re- 
quired to  show,  by  evidence  adduced  by  himself,  what  his  in- 

1  See  note. 


uo 


AMERICAN  CRIMINAL  KEPORTS. 


i;H      i.J 


tention  was,  even  though  tho  fact  appeared,  from  evidence 
introduced  by  the  p.^osecution,  that  there  were  circumstances 
of  mitigation  or  facts  which  reduced  the  crime,  as  provided  by 
section  1105  of  the  Penal  Code.  But,  on  reflection,  we  have 
concluded  that  such  is  not  the  proper  meaning  of  the  instruc- 
tion. The  words  "  unless  the  defendant  can  show  "  mean 
unless  he  can  or  does  show  from  the  whole  evidence  in  the 
case;  thus  bringing  himself  within  the  meaning  of  the  above 
section  of  the  code.  It  would  be  a  strained  construction  of 
the  lanjjuage  of  the  instruction  to  hold  that  the  court  meant 
or  intended  the  jury  to  understand  that  the  evidence  must 
come  from  the  defendant,  and  that  they  could  not  consider 
the  whole  evidence  in  the  case  as  showing  circumstances  of 
mitigation  or  facts  tending  to  reduce  the  degree  of  the  crime, 
or  even  to  excuse  or  justify  the  same. 

The  appellant  also  complains  of  the  second  instruction, 
which  is  as  follows: 

"  As  between  murder  in  the  second  degree  and  manslaughter, 
the  drunkenness  of  the  offender  can  form  no  legitimate  mat- 
ter of  inquiiy,  fo.^  manslaughter  is  the  unlawful  killing  of  a 
human  being  without  malice,  express  or  implied,  and  without 
any  mixture  of  deliberation,"  etc. 

But  is  it  true  that  drunkenness  does  form  a  legitimate  mat- 
ter of  inquiry  as  between  murder  in  the  second  degree  and 
manslaughter?  The  trial  court  told  the  jury  that  it  did  not. 
The  question  is  not  a  new  one  in  this  court.  In  the  case  of 
People  V.  JVichol,  3i  Cal.,  215,  the  court  below,  charging  the 
jury  in  a  case  of  homicide,  said: 

"  As  between  murder  in  the  second  degree  and  manslaughter, 
the  drunkenness  of  the  offender  can  form  no  legitimate  mat- 
ter of  inquiry,  for  manslaughter  is  the  unlawful  killing  of  a 
human  being  without  malice,  express  or  implied,  and  without 
any  admixture  of  deliberation." 

The  defendant  was  convicted,  and  the  judgment  was  af- 
firmed by  the  supreme  court.  The  instructions  were  quite 
numerous,  including  the  one  referred  to,  and,  speaking  of 
them,  Judge  Sanderson,  delivering  the  opinion  of  the  court, 
said:  "They  are  not  even  obno.'vious  to  criticism."  In  the 
case  of  Pirtle  v.  The  State,  9  Humph.,  663,  the  supreme  court 
of  Tennessee  says: 


PEOPLE  V.  LANGTON. 


Ul 


inat- 


"  A5  between  the  two  offenses  of  murder  in  the  second  de- 
gree and  manslaughter,  the  drunkenness  of  the  offender  can 
fonu  no  legitimate  matter  of  inquiry.  The  killing  being  volun- 
tary, the  offense  is  necessarily  murder  in  the  second  degree, 
unless  the  provocation  was  of  such  a  character  as  would  at 
common  law  constitute  it  manslaughter,  and  for  which  latter 
offense  a  drunken  man  is  equally  responsible  as  a  sober  one." 

The  case  named  is  cited  with  approval  by  the  supreme  court 
in  People  v.  Belencia,  21  Cal.,  540,  and  the  instruction  in  the 
case  we  are  now  considering  is  fully  sustained  by  these  author- 
ities. 

We  find  nothing  in  the  record  which  calls  for  a  reversal  of 
the  judgment,  and  therefore  the  same  is  affirmed,  as  is  also 
the  order  denying  a  new  trial. 

MvKicK,  J.,  Ross,  J.,  and  Thoenton,  J.,  concurred. 

Note. —  Intent. —  Wlien  the  intent  is  the  gist  of  the  crime,  the  presump- 
tion that  every  sane  man  contemplates  and  intends  the  necessary,  natural 
and  probable  consequences  of  his  own  acts,  though  a  very  important  cir- 
cumstance in  making  the  proof  necessary  upon  this  point,  is  not  conclusive, 
nor  alone  sufficient  to  convict,  and  should  be  supplemented  by  other  testi- 
mony to  avoid  a  reasonable  doubt.    People  v.  Sweeney,  55  Mich.,  586. 

No  man  is  to  be  punished  as  a  criminal  unless  his  intent  is  wrong,  and 
such  wrong  intent  must  be  foUowvl  by  a  wicked  act  to  give  it  force  and 
effect.  If  one  intends  to  do  what  he  is  conscious  the  law  forbids,  no  other 
evil  intent  need  bo  shown.  In  such  case  the  law  infers  the  intent  to  defraud 
from  the  act.     United  States  v.  Houghton.  14  Fed.  Rep.,  544. 

When  the  proof  shows  that  an  unlawful  act  was  done,  the  law  presumes 
the  intent,  and  proof  of  the  act  being  a  violation  of  law  is  proof  of  the  in- 
tent.    United  Stute.^  v.  Datdridge,  11  Fed.  Rep.,  552. 

The  intent  with  which  a  criminal  act  is  committed  need  not  be  shown  by 
direct  proof ;  but  it  may  be  inferred  from  what  the  party  does,  and  also 
from  all  the  facts  and  circumstances  under  which  the  act  complained  of 
was  committed,  as  disclosed  by  the  evidence.  State  v.  Williamn,  66  lovira, 
573. 

On  an  indictment  for  the  larceny  of  lost  goods,  evidence  may  be  admitted 
to  show  what  the  defendant  said  and  did  about  the  projjerty  and  his  posses- 
sion of  it,  subsequently  to  the  original  finding  and  taking,  for  the  purpose 
of  proving  the  intent  with  which  the  accused  originally  took  the  property 
into  his  post^ession  ai  the  time  of  finding  it.     Cum.  v.  THuh,  116  Mass..  42. 

It  was  held  in  Dnnaway  v.  Peo^ile,  110  111.,  i!;J!J,  that  where  one  without 
provocation  discharged  his  pistol  directly  at  u  group  of  persons,  it  matters 
not  what  person  lie  intended  to  kill;  or  if,  under  such  circumstances,  he 
shoots  a  person  other  tlian  the  one  intended,  the  act,  from  its  recklessness 
and  want  of  provocation,  will  be  referred  to  no  other  cause  than  malice. 


442 


AMERICAN  CRIMINAL  REPORTS. 


I'M- 


;•  iU\ 


i 


The  court  cite,  as  to  the  same  effect,  Walker  v.  State,  8  Ind.,  290;  Callahan 
V.  State,  21  Oliio  St.,  306;  Perry  v.  People,  14  111.,  496;  and  Vandermark  v. 
People,  47  111.,  122.  ' 

Malice. —  Moaning  of  malice  is  "The  doing  of  a  wrongful  act  inter (i,,), 
ally,  without  just  cause  or  excuse.    4  Barn.  &  C,  255 ;  9  Mete,  KM  i  he 

wicked,  mischievous  purpose  which  characterizes  the  perpetiatioii  of  -^n 
injurious  act  without  lawful  excuse.  4  Barn.  &  C,  255;  9  Mete,  104." 
In  Com,  V.  York,  9  Mctc,  93,  Chief  Justice  Shaw,  in  the  opinion,  says: 
"  Malice  in  the  definition  of  murder  is  imputed  to  an  act  done  wilfully, 
malo  animo;  an  act  wrong  in  itself  and  injurious  to  another,  and  for  which 
there  is  no  apparent  justification  or  excuse.  .  ,  .  Tlie  natural  or  neces- 
sary conclusion  and  inference  from  such  an  act  wilfully  done  without 
apparent  excuse  are  that  it  was  done  malo  animo  in  furtherance  of  the 
wrongful  injurious  purpose,  previously,  though  perhaps  suddenlj',  forniei', 
and  is,  therefore,  '  a  homicide  with  malice  aforethought,'  which  is  the  true 
definition  of  murder."  In  Territory  v.  Egan,  3  Dak.,  119,  malice  is  defined  to 
be  "  that  state  of  mind  or  act  where  one  wilfully  does  that  which  he  knows 
will  injure  another  person  or  property."  In  Whart.  Law  Diet.,  ni.ilice  is 
defined  to  be  "a  formed  design  of  doing  mischief  to  another;  technically, 
malitia  prcecogiiita,  or  malice  prepense  or  aforethought.  .  .  ."  In  Har- 
ris V.  Slate,  8  Tex.  Apj .,  109,  it  is  defined  to  be  "  a  condition  of  the  mind 
which  shows  a  heart  i  egardless  of  social  duty,  and  fatally  bent  on  mischief, 
tlie  existence  of  which  is  inferred  from  acts  committed  or  words  spoken." 

DrunktnneHS  —  Dipsomania.  —  In  State  v.  Potts,  100  N.  C,  457,  it  is  hold 
that  where  defendant  pleads  insanity  induced  by  excessive  use  of  liciuor,  it 
is  not  error  to  instruct  tliat  "  if  the  jury  believe  that  the  prisoner  was  a 
dipsomaniac,  and  by  reason  of  the  influence  of  such  disease  became  so 
drunk  as  to  be  unconscious  of  his  acts,  and  the  act  was  done  while  in  tliih 
condition,  then  the  presumption  of  malice  would  be  rebutted,  an-l  the  pris- 
oner was  guilty  of  manslaughter." 

In  Morrison  v.  State,  84  Ala.,  485,  the  defendant  requested  the  v'lourt  to 
instruct  the  jury  that  "  if  the  jur^'  believe  from  the  evidence  that  the  de- 
fendant was  struck  by  the  deceased  with  the  mallet  before  the  fatal  shot 
was  fired,  and  that  the  defendant  was  at  the  time  intoxicated  or  under  the 
influence  of  liquor,  the  jury  may  look  to  this  fact  in  determining  whether 
he  struck  the  fatal  blow  in  the  passion  and  heat  of  blood  excited  by  the 
provocation  of  the  blow,  or  from  malice."  Held,  that  this  instruction  was 
properly  refused,  since  a  person  inay  be  under  the  influence  of  liquor  or 
even  be  intoxicated  and  yet  not  be  so  drunk  as  to  render  him  incapable  of 
premeditation  and  deliberation.  Tlie  court  says:  "The  theory  on  which 
drunkenness  may  sometimes  reduce  a  homicide  from  murder  to  man- 
slaughter is  that  it  may  so  cloud  the  mind,  so  obscure  the  reasoning  powers, 
as  to  satisfy  the  jury  that  the  perpetrator  could  not  have  formed  tlie  design 
to  take  life.  This,  it  is  said,  rojiels  the  idea  that  there  was  a  preconceived 
purpose  to  kill.  The  drunkenness,  however,  to  produce  this  mitigating 
effect,  must  be  such  as  to  render  the  accused  incapable  of  forming  or  en- 
tertaining a  specific  intention,  of  premeditation  or  deliberation.  TidircJlv. 
State,  70  Ala.,  33;  Ford  r.  State,  71  Ala.,  385.  A  jjoison  niny  bo  'under 
the  influence  of  licjuor '  —  may  be  even  '  intoxicated '  —  and  yet  not  so  drunk 


WILLIAMS  V.  STATE. 


448 


as  to  render  him  incapable  of  premeditation,  of  deliberation,  of  forming  an 
intention." 

Accused  drunk  —  Mistake  in  identity  of  man  killed — Manslaughter, — 
Tlie  fact  that  the  accused  was  under  the  influence  of  liquor,  and  the  further 
fact  that  he  was  mistaken  in  the  identity  of  the  man  lie  killed,  and  killed 
one  man  when  he  intended  to  kill  another,  are  not  sufficit-nt  to  reduce  the 
killing  from  murder  to  manslaughter.    Buichett  v.  Com.,  85  Ky.,  — .    ■ 

Weight  —  Confessions  when  drunk  and  sober.— The  ri'hitive  credibility 
of  statements  made  by  a  defendant  in  a  criminal  action  when  drunk  and 
wiien  sober  is  for  the  jury,  and  there  is  no  rule  of  law  giving  the  preference 
to  those  made  when  sober.    Finch  v.  State,  81  Ala.,  41. 


Williams  kt  al.  v.  State. 

(81  Ala.,  1.) 

Murder:   Confederates  —  Acts  and  declarations  of  conspirators  —  Rule 
when  evidence  admissible  against  some. 

1.  Murder  —  Conspiracy  to  assault. —  If  a  number  of  men  combine  to 
invade  a  man's  household,  and  go  there  armed  with  deadly  weapons 
for  the  purpose  of  attacking  and  beating  him,  anc^  in  fuillierance  of 
this  common  design,  all  of  the  confederates  being  present  or  near  at 
hand,  one  of  them  gets  into  a  difficulty  with  their  cominon  adversary, 
and  kills  him,  all  are  guilty  of  nmrder. 

3.  Acts  and  declarations  of  conspirators,  —  If  the  evidence  prima 
facie  establishes  a  combination  or  conspiracy,  the  acts  and  declarations 
of  each  of  the  confederates  done  or  made  in  furtlierance  of  the  com- 
mon design  are  the  acts  and  declarations  of  all. ' 

3.  Joint  indictment  —  Evidence. —  Ujjon  tho  trial  of  several  defendants 

jointly  indicted  for  murder,  tiie  statement  of  the  one  who  shot  de- 
ceased, in  the  presence  of  the  others,  that  they  got  him  to  do  it,  is  ad- 
missible as  evidence  against  all. 

4.  Evidence  admissible  against  some  — Instruction.— Upon  such  trial, 

evidence  competent  against  some  defendants,  but  not  against  others, 
cannot  be  excluded ;  but  the  rights  of  the  latter  are  protected  by  an 
instruction  limiting  its  effect. 


Appeal  from  Circuit  Court  of  Barbour  County.  Tried  be- 
fore Hon.  J.  M.  Carmichael. 

Tlie  appellants  in  this  case  were  indicted  for  the  murder  of 
.\[adison  Caesar  by  shooting  him  with  a  pistol.  On  the  trial 
iMiude  Scarbrough  was  convicted  of  murder  in  the  lirst  de- 
H'l-ce,  and  sentenced  to  be  hanged;  John  Williams  and  Dennis 


1  See  note. 


444 


AMERICAN  CRIMINAL  REPORTS. 


W;   '■■  i, 

{.      M         ■        ■         . 

i;| 

.                   ^          '     ,*' 

kW'  '  '^ 

'»*'««■ 

M 

iM 

H 

■m 

Williatut'  were  convicted  of  murder  in  the  second  degree,  and 
sentenced  to  the  penitentiary  for  forty  years;  Jim  AVilliams. 
Will  Williams  and  Tiola  Scarbrough  were  convicted  of  mm-- 
der  in  the  second  degree,  and  sentenced  to  the  penitentiary  for 
twenty  years. 

One  of  the  state's  witnesses  testified  that,  just  after  the 
shooting,  she  met  all  the  defendants  about  one  hundred  yards 
from  the  house  where  the  killing  occurred ;  that  in  reply  to 
her  inquiry,  Shade  Scarbrough  said  "he  had  shot  Madison 
Caesar;  John  and  these  boys  got  him  to  do  it."  John  said 
"Hush!"  The  others  standing  present  did  not  say  anything. 
The  defendants  severally  moved  to  exclude  this  evidence  from 
the  jury. 

The  other  facts  in  this  case,  and  the  charges  given  and  re- 
fused by  the  court,  sufficiently  appear  from  the  opinion. 

A.  3f,  McLendon,  for  Shade  Scarbrough;  Jere  N.  Williams, 
for  other  appellants. 

T.  N.  McClelland,  attorney-general,  contra. 


C 


SoMEBviLLE,  J.  The  question  most  pressed  on  our  attention, 
and  the  one  of  controlling  influence  on  the  merits  of  this  case,  is 
raised  by  the  first  charge  given  by  the  court  at  the  instance  of 
the  state.  This  charge  asserts,  in  substance,  that  if  the  de- 
fendants all  entered  into  a  conspiracy  to  assault  and  heat  or  to 
kill  the  deceased,  and,  in  pursuance  of  such  common  design, 
one  of  said  defendants  did  kill  deceased  b}'  shooting  him  witli 
a  pistol,  in.  his  own  house,  and  not  in  self-defense,  the  other 
defendants  then  being  near  at  hand,  all  of  the  defendants 
would  be  guilty  of  murder.  Other  charges  asserting  the  con- 
verse of  this  were  requested  by  the  defendant,  and  refused  by 
the  court. 

It  must  be  kept  in  mind  that  the  defendants  are  not  indicted 
in  this  case  merely  for  a  conspiracy  to  commit  murder,  but  as 
principals  in  the  crime  of  murder  itself.  Nor  is  the  case  com- 
plicated by  any  inquiry  as  to  distinctions  between  accessories 
before  the  fact  and  principals  in  crime,  or  principals  in  the 
first  and  second  degree;  the  statutes  of  this  state  having,  in 
cases  of  felony,  abolished  the  common-law  distinction  in  tliis 
particular  by  providing  that  "all  persons  concerned  in  the 


WILLIAMS  V.  STATE. 


445 


gree,  and 

^^''iIIialns, 

of  inni^. 

itiary  for 

after  the 
etl  yards 
reply  to 
Madison 
olin  said 
mvthinir. 
nee  from 

J  and  re- 


Vill 


iams, 


Lttention, 
is  case,  is 
stance  of 
f  the  de- 
>eat  or  to 
n  desiirn, 
lim  with 
he  other 
fendants 
the  con- 
fused hy 

indicted 
p,  but  as 
Lse  coni- 
jessoiios 
s  in  the 
ving,  ill 
1  in  tliis 
in  the 


commission  of  a  felony,  whether  they  directly  commit  the  act 
constituting  the  offense,  or  aid  or  abet  in  its  commission,  thougli 
not  present,"  are  authorized  to  be  indicted,  tried  and  pun- 
ished as  principals.  Code  of  1876,  §  4802;  Hughes  v.  The 
State,  75  Ala.,  31. 

The  general  rule  is  familiar  that,  where  several  parties  con- 
spire or  combine  together  to  commit  any  unlawful  act,  each  is 
criminally  responsible  for  the  acts  of  his  associates  or  confed- 
erates committed  in  furtherance  or  in  prosecution  of  the  com- 
mon design  for  which  they  combine.  The  point  of  difficulty 
arises  in  applying  this  general  principle  when  it  is  sought  to 
ascertain  what  particular  acts  come  withm  or  are  departures 
from  the  common  design  or  plan.  It  is  very  clear  that  one 
may  often  be  responsible  for  an  act,  committed  either  by 
himself  or  by  a  confederate,  which  he  did  not  specifically  in- 
tend to  commit.  A  common  example  is  found  in  the  case, 
often  adjudged,  where  one  who  commits  a  mere  civil  trespass 
by  shooting  at  another's  fowls,  wantonly  or  in  sport,  may  be 
held  guilty  of  manslaughter  when  the  death  of  a  human  being 
accidentally  ensues;  and,  if  his  intent  was  to  steal  the  fowls, 
then  of  murder,  although  he  did  not  specifically  intend  homi- 
cide in  either  case.  So  the  case  is  put  by  Mr.  East:  If  one  wil- 
fully, with  intent  to  hurt,  throw  a  large  sione  at  another,  and 
by  accident  kill  him,  this  is  murder;  but  if  the  stone  is  small, 
and  not  likely  to  produce  death,  it  would  seem  to  be  man- 
slaughter. 1  East,  P.  C,  257.  It  is  thus  an  important  rule,  as 
we  shall  more  fully  show,  that  the  responsibility  for  incidental 
and  often  for  accidental  results  broadens  with  the  magnitude 
or  heinousness  attached  to  the  unlawful  act  specifically  agreed 
to  be  perpetrated.  This  is  upon  the  principle  that  every  one 
is  pre:;. lined  to  intend,  and  therefore  must  be  held  responsible 
for,  the  natural  and  probable  consequences  of  his  own  acts. 
It  necessarily  follows  that,  where  one  ]iei'son  combines  with 
another  to  do  an  unlawful  act,  he  imjiliedly  conscn*''  to  the  use 
of  such  means  by  his  confederate  as  may  be  necessary  or  usual 
in  the  successful  accomplishment  of  such  an  act.  The  more 
flagrant  and  vicious  the  act  agreed  to  be  done,  the  wider  is  the 
latitude  of  the  agenc}'  impliedly  conferreil  to  execute  it. 

The  rule  of  criminal  responsibility,  in  cases  of  conspirac}' or 
'■oinbination,  seems  to  be  that  each  is  responsible  for  every- 


446 


AMERICAN  CRIMINAL  REPORTS. 


4;f 


ijt%i 


thing  done  by  his  confederates  which  follows  incidentally  in 
the  execution  of  the  common  design,  as  one  of  its  probable 
and  natural  consequences,  even  though  it  was  not  intended  as 
a  [tart  of  the  original  design  or  common  plan.  1  Whart.  Crim. 
Law  (9th  ed.),  §§  214,  220.  In  other  words,  the  act  must  be 
the  ordinary  and  probable  effect  of  the  wrongful  act  specific- 
ally agreed  on,  so  tliat  the  connection  between  them  may  be 
reasonably  apparent,  and  not  a  fresh  and  independent  product 
of  the  mind  of  one  of  the  confederates,  outside  of  or  foreign 
to  the  common  design.  Nor  must  it  have  been  committed  b}' 
one  of  the  confederates  after  the  explosion  of  the  plot,  or  the 
abandonment  of  the  common  design,  or  from  causes  having  no 
connection  with  the  common  object  of  the  conspirators.  1 
Bish.  Crim.  Law  (7th  ed.),  §§  640,  641;  1  Whart.  Crim.  Law, 
§  397;  Lamb  v.  The  People,  96  111.,  73;  S.  C,  2  Crim.  Law 
Mag.,  472;  linloff  v.  The  People,  45  N.  Y.,  213;  Thompson  v. 
The  State,  25  Ala.  41 ;  Frank  v.  The  State,  27  Ala.,  37. 

The  application  of  the  rule  to  cases  of  homicide  is  made  in 
1  Halo,  P.  C,  441,  where  it  is  said:  "If  divers  persons  come  in 
one  company  to  do  an  unlawful  thing,  as  to  kill,  rob  or  heat  a 
man,  or  to  commit  a  riot,  or  to  do  any  other  trespass,  and  one 
of  them,  in  doing  thereof,  kill  a  man,  this  shall  be  adjudged 
murder  in  them  all  that  are  present  of  that  party  abetting 
him,  and  consenting  to  the  act,  or  ready  to  aid  him,  although 
they  did  but  look  on."  And  tiie  following  language  is  used  in 
1  East,  P.  C,  257:  "Where  divers  persons  resolve  generally  to 
resist  all  opposers  in  the  commission  of  any  breach  of  the 
peace,  and  to  execute  it  with  violence,  or  in  such  a  manner  as 
naturally  tends  to  raise  tumults  and  affrays, —  as  by  committing 
a  violent  disseizin  with  great  numbers,  or  going  to  heat  a  vian,  oi* 
rob  a  park,  or  standing  in  opposition  to  the  sheriff's  posse,— 
they  must  at  their  peril  abide  the  result  of  their  actions." 

It  has  long  been  a  rule  of  law,  now  often  repeated  by  the 
text-writers,  that  "  if  A.  command  B.  to  beat  C,  so  as  to  in 
flict  grievous  bodily  harm,  and  he  beat  C.  so  that  C.  dies,  A. 
is  an  accessory  to  the  murder,  if  the  offense  be  murder  in  B.'" 
1  Whart.  Crim.  Law,  §  225;  1  Hale,  617.  The  line  of  distinc- 
tion here  is  narrow,  as  appears  from  the  proposition  announced 
by  Mr.  Bishop,  in  support  of  which  there  are  many  adjudged 
cases.    "  If,"  he  says,  "two  combine  to  fight  a  third  wiihfsts 


entally  in 

probable 
tended  as 
art.  Crim. 

must  be 
t  specific- 
a  ma}'  be 
t  product 
»r  foroiffn 
mitted  b}' 
ot,  or  the 
having  no 
rators,  1 
rim.  Law, 
rim.  Law 
07vpson  V. 
7. 

made  in 
IS  come  in 

or  beat  a 

3,  and  one 

adjudged 

r  abetting 

although 

is  used  in 
nerally  to 
)h  of  the 
nanner  as 
•mmitting 
avian,  or 
's  posse,— 
)ns." 

3d  by  the 
as  to  in 
\  dies,  A. 
er  in  V>." 
)i  distinc- 
nnounced 
adjudged 
with^,?^6'. 


WILLIAMS  V.  STATE. 


447 


and  death  accidcutally  results  from  a  blow  inflicted  by  one, 
the  other  also  is  responsible  for  the  homicide;  but,  if  one  re- 
sorts to  a  deadly  weapon  without  the  other's  knowledge  or 
consent,  he  only  is  thus  liable."  1  Bish.  Crim.  Law  (7th  ed.), 
§  637;  Reg.  v.  Caton,  12  Cox,  C.  C,  624.  The  implied  agree- 
ment here  is  evidently  not  to  resort  to  the  use  of  a  deadly 
weapon,  and  the  use  of  such  weapon  is  therefore  foreign  to 
the  contemplation  of  the  parties,  and  a  departure  from  the 
common  design.  It  is  said  by  some  of  the  standard  authors 
that,  if  the  specific  act  agreed  to  be  done  was  malum  in  se,  the 
responsibility  for  unintended  results  would  embrace  acts  arising 
from  misfortune  or  chance;  but  otherwise  if  such  specific  act 
was  nnduni pi'ohihitum  merely,  or  lawful.  1  IJish.  Crim.  Law 
(7th  ed.),  §  331;  Archb.  New  Crim.  Proc,  9.  In  some  ca^es 
the  distinction  is  taken  that,  where  persons  unlawfully  conspire 
to  commit  a  trespass  only,  to  make  all  the  confederates  guilty 
of  murder  the  death  must  ensue  in  the  prosecution  of  the  de- 
sign. If  the  unlawful  act  be  a  felony,  or  be  more  than  a  tres- 
pass, it  will  be  murder  in  all,  "although  the  death  happened 
collaterally,  or  beside  the  original  design."  St>tte  v.  Shelledy, 
8  Clark  (Iowa),  478.  In  another  recent  case  the  rule  was  an- 
ntninced  that  "if  the  unlawful  act  agreed  to  be  done  is  dan- 
gerous or  homicidal  in  its  character,  or  if  its  accf  mplishment 
will  necessarily  or  probably  require  the  use  of  force  and  vio- 
lence, which  may  result  in  the  taking  of  life  unlawfully,  every 
party  to  such  agreement  will  be  held  criminally  liable  for 
whatever  any  of  his  co-conspirators  may  do  in  furtherance  of 
the  c())iimon  design,  whetlier  he  is  pivsent  or  not."  Lamb  v. 
The  People,  96  111.,  73. 

The  ([iiestion  in  this  case,  then,  \\ould  soom  to  be  whether, 
if  live  (ii-  six  men  combine  together  to  invade  a  man's  house- 
hold, and  thoy  go  there  ai-med  with  deadly  weapons  for  the 
pur|)()sc  of  attacking  and  boating  him,  and  in  I'uriheranceof  this 
common  design,  all  of  the  confederates  being  present  or  near  at 
hand,  one  of  them  gets  into  a  difficulty  with  their  common  ad- 
versary, and  kills  him,  all  may  not  be  guilty  of  murder,  although 
they  did  not  all  entertain  a  purpose  to  kill.  The  question,  we 
think,  must  be  answered  in  the  allirmative,  in  the  light  of  both 
principle  and  authority.  Every  num  has  the  right  to  defend  his 
house  against  every  unlawful  invasion,  and  to  defend  his  person, 


448 


AMERICAN  CRIMINAL  REPORTS. 


when  within  it,  against  every  and  all  violence,  without  the  ne- 
cessity of  retreat.  The  experience  of  mankind  shows  that  very 
few  men  will  fail  to  respond  to  instinct  by  exercising  this  right 
to  the  extent  even  of  killing  an  assailant  if  necessary.  AVhena 
mob,  conspiring  together  unlawfully,  go  to  a  man's  house  to 
do  any  serious  violence  to  his  person,  especially  in  the  night- 
time, as  here,  they  can  expect  nothing  else  than  to  meet  with 
armed  opposition,  and  the  inference  is  not  unreasonable  that 
they  intend  nothing  less  than  to  oppose  force  to  force,  in 
the  furtherance  of  their  design.  The  natural  and  probable 
consequence  of  this  is  homicide, —  either  of  one  or  more  of  the 
assailants,  or  of  the  party  thus  assailed, —  and  such  homicido, 
when  committed  by  any  one  of  the  conspirators,  can  bo  noth- 
ing less  than  murder  in  all  who  combine  to  commit  the  unlaw- 
ful  act  of  violence,  especially  if  they  be  near  at  hand,  inciting, 
procuring  or  encouraging  the  furtherance  of  the  act  of  assault 
and  battery. 

The  adjudged  cases  sustain  this  view,  some  of  which  we 
proceed  to  cite. 

In  Pedeii  v.  TJie  State,  61  ]\Iiss.,  208,  the  precise  question  was 
presented  and  decided.  There  several  persons  conspired  to- 
gether to  take  one  Walker  from  his  house  and  whip  him.  He 
was  accordingly  taken  fi'om  his  bed  and  severely  beaten,  and 
in  executing  this  design  one  of  the  conrederatcs  struck  him  a 
fatal  blow  with  a  spade,  from  which  he  tlied.  It  was  held  that 
all  were  guilty  of  murder,  whether  tiioy  entertained  a  |)ur|)osf' 
to  kill  "Walker  or  not. 

In  Brenmuiv.  TIte  People,  15  111.,  .')12,  where  a  large  num- 
ber of  defendants  were  indicted  for  the  murder  of  one  Story, 
instructions  were  asked  which  required  the  jurv  to  acquit  the 
prisoners  unless  they  actually  participated  in  the  killing  of  de- 
ceased, or  unless  the  killing  happened  in  pursuance  of  a  com- 
mon design,  on  the  part  of  the  prisoners  and  those  doing  the 
act,  to  take  his  life.  Tlie  court  said :  "  Such  is  not  the  law. 
The  prisoners  may  be  guilty  of  murder  although  they  neither 
took  part  in  the  killing  nor  assented  to  any  arrangement  hav- 
ing for  its  object  the  death  of  Story.  It  is  sulliciont  that  they 
combined  with  those  committing  the  deed  to  do  an  unlawful 
act,  such  as  to  heat  or  roh  Story,  and  that  he  was  killed  in  the 
attempt  to  execute  the  common  purpose.     If  several  persons 


WILLIAMS  f.  STATE. 


449 


ut  tlie  ne- 

tliat  very 

this  right 

.  When  a 

house  to 

he  night- 

noet  with 

able  that 

force,  in 

probable 

)re  of  the 

lomicide. 

bo  iiotli- 

he  unlaw- 

,  inciliiin', 

of  assault 

vhich  we 

stion  was 
spired  to- 
him.  He 
aten,  and 
ck  him  a 
hekl  tliat 
a  purposo 


rge  nuin- 


ne 

3quit  the 
iig  of  (Ic- 
if  a  com- 
oing  the 
the  law. 
y  neither 
lont  hav- 
liat  they 
unhiwfiil 
d  ill  the 
persons 


conspire  to  do  an  unlawful  act,  and  death  happens  in  the 
prosecution  of  the  common  object,  all  are  alike  guilty  of  the 
homicide." 

In  Shdle<hj''s  Case,  8  Clark  (Iowa),  478,  the  defendants  had 
taken  one  Wilkinson,  and,  after  tying  him  with  a  rope,  put  him 
in  a  carriage,  started  with  him  to  the  woods,  making  menaces 
of  violence  against  him,  by  which  he  was  induced  to  jump 
from  the  vehicle  into  a  river,  and  was  drowned,  no  effort  beino- 
made  to  rescue  him.  It  was  held  that  all  the  confederates 
might  be  properly  convicted  of  murder,  although  some  of  them 
designed  only  to  commit  personal  violence  on  the  deceased, 
without  intending  to  kill  him. 

In  Miller  v.  The  State,  25  Wis.,  384,  the  wife  of  the  defend- 
ant, without  fear  or  compulsion  from  him,  agreed  with  him  to 
go  to  the  store  of  one  Wright,  the  deceased,  and  to  rob  it;  the 
husband  telling  her,  and  she  believing,  that  he  did  not  intend 
to  kill  AV right,  but  only  to  knock  him  down  so  as  to  stun  him, 
in  order  to  consummate  the  robbery.  They  went  together,  and 
the  husband,  in  carrying  out  the  plan,  gave  the  deceased  a 
fatal  blow,  the  wife  giving  no  intentional  assistance.  A  charge 
was  sustained  which  justified  the  jury,  under  this  state  of  facts, 
in  finding  her  guiltv  of  murder. 

In  Miller  v.  The  State,  15  Tex.  App.,  125,  the  evidence  tended 
to  show  that  the  defendant  and  two  others  by  the  name  of 
Harden  acted  together  in  provoking  a  contest  with  deceased, 
one  Linson,  either  with  the  purpose  of  killing  him  or  of  doing 
him  some  serious  bodily  harm,  and  in  pursuance  of  this  com- 
mon design  one  of  the  Hardens,  in  the  presence  of  the  defend- 
ant, shot  and  killed  deceased.  It  was  held  that,  if  the  jury 
believed  the  evidence,  they  could  lawfully  find  the  defendant 
guilty  as  a  principal  in  the  act  of  murder. 

In  Ferijuson.  v.  The  State,  32  Ga.,  658,  the  defendant  was  con- 
victed of  robbery.  The  facts  were  that,  having  effected  es- 
cape from  his  own  cell  in  a  jail,  the  defendant  had  broken  the 
locks  off  the  doors  of  other  cells,  the  inmates  of  which,  so 
soon  as  the  jailer  made  his  appearance,  set  upon,  bound  and 
blindfolded  him,  and  then  some  of  them  proceeded  to  robhira. 
The  trial  court  refused  to  charge  the  jury  that  the  prisoner 
could  not  be  convicted  of  robbery  if  he  was  unaware  of  the 
intent  to  rob;  but  that  it  was  sufficient  if  the  prisoner  con- 
VoL.  VII  — 29 


450 


AMERICAN  CRIMINAL  REPORTS. 


v/T* 


spired  with  the  others  to  effect  an  escape,  and  that  thorobberv 
charged  was,in  furtlieranco  of  this  desi<»n,  the  prisoner  beiiv 
near  enough  at  hand  to  render  assistance  to  those  actually 
committing  the  felony. 

Under  the  foregoing  authorities  we  are  of  opinion  that  the 
rulings  of  the  court,  on  this  particular  branch  of  the  law,  were 
free  from  all  error. 

The  case  of  The  State  v.  Absence,  4  Port.,  397,  is  not  in  con- 
flict with  this  view.  There  the  defendant  had  participated  in 
an  assault  and  battery  committed  in  a  personal  rencounter  be- 
tween one  Weaver  and  one  Mosely,  only  so  far  as  to  push  the 
former  towards  the  latter  for  the  purpose  of  causing  a  figlit 
between  thorn.  A  light  ensued,  in  the  progress  of  which 
Mosely  committed  mayhem  on  the  person  of  Weaver  by  biting 
off  his  right  ear,  which  was  a  felony.  A  charge  was  held  erro- 
neous that,  under  this  state  of  fads,  Absence  would  necessa- 
rily be  guilty  of  mayhem  without  participation  in  the  feloni- 
ous intent  of  Mosely.  It  was,  however,  left  an  open  question 
in  that  case,  whether,  if  two  or  more  persons  should  agree 
together  to  do  some  great  bodily  harm  to  another,  and  one  of 
them  committed  mayhem  on  the  jnirty  beaten,  all  who  are 
present  would  not  be  guilty  of  the  mayhem.  It  may  be  re- 
marked that  J\lr.  Bishop  criticises  this  case  as  doubtful,  and 
Mr.  Wharton  thinks  it  erroneous.  1  I'ish.Crim.  I^w(7thed.), 
§  G35;  1  Whart.  Crim.  Law  (9th  ed.),  §  2U,  note  1. 

2.  There  is  no  error  in  the  refusal  of  the  court  to  quash  the 
venire.  The  name  of  R.  C.  Stanley  appeared  on  the  original  list 
of  jurors.  On  the  copy  served  on  the  defendant  the  name  was 
written  D.  C.  Stanley.  This  was  a  mere  mistake  or  discrep- 
ancy in  the  name  of  the  person  summoned,  and,  under  the 
provisions  of  the  statute,  was  no  sulHcient  cause  to  quash  the 
venire,  "unless  the  court,  in  its  discretion,  was  of  opinion  that 
the  ends  of  justice  so  required."  Code  of  187G.  §  4876;  Jach 
son  V.  The  State,  76  Ala.,  26;  IluUard  v.  The  State,  72  Ala., 
164;  3  Brick.  Dig.,  p.  264,  §  168. 

3.  The  objection,  moreover,  came  too  late;  not  having  been 
interposed  until  the  entire  jury  had  been  drawn,  impaneled, 
and  accepted  by  the  state,  and  was  offered  for  acceptance  to 
the  defendants. 

4.  The  declaration  made  by  the  defendant  Shade  Scar- 


WILLIAMS  V.  STATE. 


451 


10  robberv 
ner  beiii" 
3  actiiallv 

V 

that  the 
law,  wore 

5t  in  con- 
cipated  in 
Bunter  be- 

push  the 
S  a  fight 

of  wliich 

by  biting 
liclcl  erro- 
neccssa- 
Jie  feloni- 

question 
uld  agree 
ml  one  of 

who  are 
ay  be  re- 
btful,  and 
'(Tthed.), 

Tuash  the 
iginal  list 
name  was 
[•  discrep- 
mder  the 
]uash  the 
nion  that 
76;  Jack- 
72  Ala., 

'ing  been 
1  paneled, 
)tance  to 

de  Scar- 


brongh,  in  the  presence  and  hearing  of  the  other  co-defend- 
ants, directly  implicating  them  as  accessories  in  the  alleged 
murder  of  the  deceased,  was  admissible,  in  our  judgment, 
against  all  of  the  defendants.  It  may  bo  that  tlie  jury  should 
have  exorcised  great  caution  in  drawing  any  implications  of 
guilt  from  the  silence  of  the  other  defendants,  but  this  went 
only  to  the  weight  of  the  evidence.  The  charge  embodied  in 
this  declaration,  that  the  other  defendants  had  instigated  him 
to  commit  the  crime,  was  one  naturally  calling  for  contradic- 
tion under  the  circumstances  if  it  was  in  fact  untrue.  Camp- 
Mi  V.  The  State,  55  Ala.,  80;  Stepli.  Dig.  Ev.,  art.  4,  p.  10. 

5.  Conceding,  moreover,  that  this  evidence  was  inadmissible 
against  all  the  defendants,  it  was  certainly  admissible  against 
Scarbrough,  the  one  making  the  declaration,  and  the  remedy 
was  not  a  motion  to  entirely  exclude  it  from  the  jury,  but  the 
settled  practice  is  a  request  for  instructions  limiting  its  effect 
so  as  to  confine  the  influence  of  the  evidence  only  to  the  de- 
fendant against  whom  it  was  admissible.  Lems  v.  Lee  Co..,  06 
Ala.,  480;  1  Brick.  Dig.,  p.  810,  §§  98,  99. 

6.  The  fourth  charge  requested  by  the  defendant  Scarbrough 
was  clearly  erroneous,  and  was  properly  refused  by  the  court. 
There  is  no  evidence  tending  to  show  that,  at  the  time  of  the 
killing,  he  was  so  drunk  as  to  be  incapable  of  understanding 
the  nature  of  the  act  committed  by  him.  Drunkenness,  more- 
over, would  not  entirely  excuse  the  crime.  It  could  only 
operate,  at  most,  to  reduce  the  grade  of  the  homicide  from 
murder  to  manslaughter  by  rebutting  the  existence  of  malice 
aforethought  in  the  mind  of  the  i)erpetrator.  Ford  v.  State, 
71  Ala.,  385.  The  other  charges  requested  by  the  defendant 
Scarbrough  were  manifestly  erroneous,  and  their  refusal  was 
without  error. 

7.  The  first  charge  requested  by  the  defendant  John  Will- 
iams was  susceptible  of  the  interpretation  that  the  defendants 
must  have  entered  into  an  express  agreement  to  do  an  unlaw- 
ful act  before  thoy  would  be  guilty  of  a  conspiracy;  thus 
ignoring  the  fact,  which  the  evidence  tends  to  prove,  that  the 
defendant  Williams  and  others  were  near  at  hand,  encourag- 
ing the  perpetration  of  the  homicide,  either  by  abetting  the 
act  of  killing  or  inciting  the  unlawful  acts  which  immediately 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


|4J 

lis 

U 

W      Ifill 
ut 


125 


12.0 


L25  iU.  |i.6 


6" 


Photographic 

Sdaices 

Corporalion 


13  WKT  MAM  STRUT 

WnSTiR,N.Y.  I4SM 
(71*)B72-4S03 


£ 


■4 


452 


AMERICAN  CRIMINAL  REPORTS. 


'h' 


led  to  it.    The  charge  was  therefore  misleadiag,  if  not  errone- 
oub,  and  was  properly  refused. 

8.  If  the  evidence  prima  facie  established  a  combination  or 
conspiracy  to  invade  the  premises  of  deceased,  and  to  beat  or 
kill  him,  the  acts  and-  declarations  of  each  of  the  confederates 
done  or  made  in  furtherance  of  the  common  design  were  the 
acts  and  declarations  of  all.  The  eleventh  charge  requested 
on  behalf  of  the  defendant  John  Williams  was  repugnant  to 
this  principle,  and  its  refusal  was  without  error. 

9.  The  twelfth  charge  requested  by  the  same  defendant,  and 
the  third  charge  requested  by  the  defendant  Dennis  Williams, 
were  abstract,  there  being  no  evidence  to  support  either  of 
them.    Each  was  rightly  refused  by  the  trial  court. 

We  have  closely  examined  the  record  in  this  case,  and  are 
constrained  to  say  that  we  find  no  error  in  it.  The  judgment 
of  the  court  is  accordingly  affirmed  as  to  each  of  the  several 
defendants;  and,  the  day  appointed  bj'  the  circuit  court  for 
the  execution  of  the  sentence  of  death  upon  one  of  the  defend- 
ants, Shade  Scarbrough,  having  passed,  it  is  accordingly  or- 
dered and  adjudged  by  this  court  that  Friday,  the  11th  day  of 
March  next,  A.  D.  1887,  be  fixed  for  the  execution  of  said  sen- 
tence, and  on  that  day  the  sheriff  of  Barbour  county  will  pro- 
ceed, in  all  respects  in  the  manner  provided  by  statute,  to 
execute  the  sentence  of  death  upon  the  said  Shade  Scarbrough 
by  hanging  him  by  the  neck  until  he  is  dead. 

Affirmed. 

Note. —  Acts  and  declarations  of  conspirators. —  See  Spies  v.  People 
Anarchist  Case),  6  Am.  Cr.  R.,  870. 


Kaelin  v.  Commonwealth. 

(84Ky.,854.) 

Mcbdeb:  Indictment  for  felony  defective  which  omits  the  loord  felonious — 

Evidence  —  Depositions. 

1,  Murder— Indictment  — Failobb  to  allege  that  the  kiluno  was 
FELONIOUS. —  An  indictment  for  a  common-law  felony  should  charge 
that  the  act  was  done  feloniously  or  with  a  felonious  intent ;  the  use  of 
no  other  words  will  supply  the  omission  of  such  an  allegation.    An  in- 


KAELIN  V.  COMMONWEALTH. 


453 


not  errone- 

bination  or 
to  beat  or 
)nfederates 
n  were  tho 
J  requested 
pugnant  to 

mdant,  and 
i  Williams, 
't  either  of 

se,  and  are 
»  judgment 
the  several 
;  court  for 
the  defend- 
rdingly  or- 
Llth  day  of 
of  said  ^en- 
;y  will  pro- 
statute,  to 
Scarbrough 


ies  V.  People 


i  felonious  — 

KILUNO  WAS 
hould  charge 
It;  the  use  of 
tion.    An  in- 


dictment for  murder  which  fails  to  allege  that  the  act  of  killing  waa 
felonioualy  committed  is  fatally  defective. 

2.  Evidence— Exclamations  of  by-standers.— The  exclamations  of  by- 

standers on  the  spot  where  a  murder  has  been  committed,  giving  ex- 
pression to  the  opinion  that  the  defendant  ought  to  be  hung,  are  clearly 
hearsay  and  not  admissible  in  evidence. 

3.  Deposition  — Commissions  — Power  op  court  to  issue.— There  is  no 

inherent  power  in  a  common-law  court  to  issue  commissions  to  take 
depositions  to  be  read  in  behalf  of  litigants  in  a  civil  or  criminal  case; 
the  right  to  take  and  use  depositions  of  witnesses  in  behalf  of  the  de- 
fendant in  a  criminal  case  is  statutory,  and  does  not  exist  in  cases  not 
provided  for  by  the  legislature. 

Appeal  from  Jefferson  Circuit  Court. 

Alpheiis  Baker,  Kohn  cfe  Barker,  Whitaker  <&  Parsons,  and 
IF.  G.  Baird,  for  appellant. 
P.  W.  Hardin,  attorney-general,  for  appellee. 

Bennett,  J.  The  appellant,  Michael  Kaelin,  was  indicted 
by  the  grand  jury  of  Jefferson  county  for  the  murder  of  his 
wife,  Caroline  Kaelin.  The  trial  jury  in  the  Jefferson  circuit 
court  found  him  guilty  of  said  charge,  and  fixed  his  punish- 
ment at  death.  His  motion  for  a  new  trial  having  been  over- 
ruled, and  sentence  of  death  having  been  pronounced  upon 
him,  he  appeals  to  this  court. 

He  complains,  first,  that  the  lower  court  erred  in  overrul- 
ing his  demurrer  to  the  indictment  because  of  its  insufficiency 
in  law. 

So  much  of  the  indictment  as  is  material  to  the  investiga- 
tion of  the  question  raised  by  tne  demurrer  is  as  follows:  "The 
grand  jurors  of  Jefferson  county  .  .  .  accuse  Michael  Kaelin 
of  the  crime  of  murder,  committed  in  manner  and  form  as 
follows,  to  wit:  The  said  Michael  Kaelin  .  .  .  unlawfully, 
wilfully,  cruelly,  and  of  his  malice  aforethought,  did  kill,  slay 
and  murder  his  wife,  Caroline  Kaelin,"  etc. 

The  indictment  fails  to  allege  that  the  act  of  appellant  in 
killing  his  wife  was  feloniously  committed.  The  contention  of 
appellant  is  that  the  failure  to  allege  that  the  act  of  killing 
was  feloniously  committed  renders  the  indictment  fatally  de- 
fective. If  this  position  is  well  taken,  then  the  lower  court 
should  have  sustained  the  demurrer  to  the  indictment,  and, 


451 


AMERICAN  CRIMINAL  REPORTS. 


''  ! 


failing  to  do  so,  a  new  trial  shoald  have  been  granted,  as  the 
error  runs  through  the  entire  proceedings  thereafter  had. 

In  order  to  keep  an  intelligent  view  of  the  question  at  issue 
before  the  mind,  it  must  be  remembered  that  the  appellant  is 
not  accused  in  the  indictment  of  any  crime  created  by  statute* 
nor  of  any  crime  defined  by  statute,  but  of  the  common-law 
crime  of  murder,  which  the  statute  of  the  state  does  not  define, 
but  simply  fixes  the  punishment  to  be  inflicted  for  committing 
the  crime.  So  in  determining  the  question  of  the  sufficiency 
or  insufficiency  of  the  indictment  before  us,  we  must,  of  neces- 
sity, resort  to  the  rules  of  the  common  law. 

Mr.  Bishop,  in  the  first  volume  of  his  work  on  Criminal  Pro- 
cedure, section  534,  says:  "  The  indictment  should  show  plainly 
on  its  face  whether  the  crime  was  treason,  felony  or  misde- 
meanor; so  that,  while  the  pleadings  were  in  Latin,  the  in- 
dictment for  treason  must  contain  the  word  '' prodhoriej  and 
for  felony  the  word  '■felonice.''  The  oniission  indicated  that 
the  offense  was  no  more  than  a  misdemeanor;  'for,'  says 
Starkie,  '  it  seems  to  be  clear  that  no  offense,  as  described  in 
any  indictment,  can  amount  to  more  than  a  misdemeanor,  if 
it  be  not  laid  to  have  been  committed  either  proditorie  or  fel- 
onice.  And  these  distinctions  are  continued,  at  least  as  to 
common-law  offenses,  down  to  the  present  day;  and  in  this 
country  the  indictment  for  treason  alleges  that  the  act  was 
committed  traitorously;  for  felony,  that  it  was  done  feloni- 
ously ;  and  where  neither  of  these  words  is  used  the  offense  is 
only  a  misdemeanor."  Also  the  same  author  says  in  volume 
2,  section  542:  "Murder  and  manslaughter  being  equally  fel- 
onies, the  criminal  act  should  in  each  be  averred  to  have  been 
done  feloniously." 

So,  also,  "Wharton,  in  the  first  volume  of  his  work  on  Crim- 
inal Law,  section  399,  savs:  "The  word  'feloniously'  is  essen- 
tial  to  all  indictments  for  felony,  whether  at  common  law  or 
statutory;  and,  in  several  cases,  technical  and  appropriate 
words  are  frequently  requisite  in  adding  to  the  description  of 
tfie  offense.  Thus,  in  an  indictment  for  murder,  it  is  essential 
to  state,  as  a  conclusion  from  the  facts  previously  averred,  that 
the  said  defendant,  him,  the  said  C.  D.,  in  manner  and  form 
aforesaid,  feloniously  did  kill  and  murder  —  a  term  of  art 
which  in  no  case  can  bo  dispensed  with.    On  the  same  princi- 


T^ 


KAELIN  V.  COMMONWEALTH. 


465 


ed,  as  the 
r  had. 
on  at  issue 
ppellant  is 
by  statute* 
minon-law 
not  define, 
jmrnittiiiff 
sufficiency 
,  of  neces- 

minal  Pro- 
o\v  phiinly 
or  niisde- 
in,  the  in- 
itorle^  and 
3ated  that 
'for,'  says 
sscribed  in 
iineanor,  if 
orie  or  fe\- 
east  as  to 
ind  in  this 
le  act  was 
jne  felon  i- 
9  otTense  is 
in  volume 
qually  lel- 
have  been 

£  on  Crim- 
^ '  is  essen- 
jon  law  or 
ppropriate 
iription  of 
s  essential 
erred,  that 
and  form 
fm  of  art 
mo  princi- 


ple it  must  also  be  alleged  that  the  offense  was  committed  of 
defendant's  malice  aforethought  —  words  which  cannot  be  sup- 
plied by  the  aid  of  any  other ;  and,  if  any  of  these  terms  be 
omitted,  the  indictment  is  defective." 

So,  also,  Mr.  Chitty,  in  his  work  on  Criminal  Law,  section 
24:2,  says:  "There  are  certain  terms,  which  are  usually  in- 
serted in  the  part  of  the  indictment  we  are  now  examining, 
which  mark  out  the  color  of  the  offense  with  precision,  and 
which  are  absolutely  necessary  to  determine  the  judgment. 
Thus,  every  indictment  for  treason  must  contain  the  word. 
*  traitorously,'  and  '  feloniously '  must  be  introduced  in  every 
indictment  for  felony ;  and  these  words  are  so  essential  that, 
if  the  word  '  feloniously '  be  omitted  in  an  indictment  for  steal- 
ing a  horse,  it  would  only  be  a  trespass,  ...  As  a  conclu- 
sion from  the  facts  averred,  it  must  be  stated  that  the  defend- 
ant feloniously  did  kill,"  etc. 

Also,  Sir  William  Blackstone,  in  the  fourth  book  of  his  Com- 
mentaries, page  300,  says:  "  The  offense  itself  must  be  set  forth 
with  clearness  and  certainty ;  and  in  some  crimes  particular 
words  of  art  must  be  used,  which  are  so  appropriated  by  the 
law  to  express  the  precise  idea  which  it  entertains  of  the  of- 
fense that  no  other  words,  however  synonymous  they  may 
seem,  are  capable  of  doing  it.  Thus,  in  treason,  the  facts  must 
be  said  to  be  done  treasonably.  In  all  indictments  for  felonies 
the  adverb  'feloniously'  must  be  used;  .  .  .  for  these 
alone  can  express  the  intent  —  the  very  offense." 

Further  quotations  from  the  writers  on  criminal  law  are  un- 
necessary. It  is  sufficient  to  say  that  they  hold  that  it  is  ab- 
solutely necessary,  in  all  indictments  for  felonies  at  common 
law,  to  use  the  word  "  feloniously  "  to  indicate  the  crime  itself. 
The  courts  of  England,  says  Mr.  Bishop,  have  uniformly  held 
that  the  word  "  feloniously  "  is  indispensably  necessary  in  all 
indictments  for  felony  at  common  law.  The  courts  of  last  re- 
sort of  nearly  every  state  in  this  Union  hold  the  same  doctrine. 

The  supreme  court  of  Missouri,  in  the  case  of  Jane  v.  State, 
3  Mo.,  01,  holds  that  "  there  is  no  proposition  more  clear  in 
law  than,  in  all  indictments  for  felony,  the  indictment  must 
charge  the  act  to  have  been  done  feloniously,  or  with  a  feloni- 
ous intent."  Also,  in  the  case  of  SkUe  v.  Ilurdock,  9  Mo.,  739, 
the  court  says:   "Every  offense  which  is  made  a  felony  by 


iMii 


IH: 


456 


AMERICAN  CRIMINAL  REPORTS. 


f  ■ 


M 


^1 


il; 


ii 


hh 


|H 


statute  must  be  charged  to  have  been  done  feloniously,  whether 
it  was  a  felony  by  common  law  or  not.  The  word  "feloni- 
ously" is  indispensably  necessary  in  all  indictments  for  felony, 
whether  statutory'  or  by  common  law."  Also,  to  the  same 
effect,  are  the  cases  of  State  v.  Williams,  30  Mo.,  364,  and  State 
V.  Dejfenhacher,  51  ^o.,  26. 

In  the  case  oi  Bowler  v.  State,  41  Miss.,  570,  the  court  says: 
"  It  is  settled  that  the  word  '  feloniously '  is  indispensable  in 
every  indictment  for  a  felony,  and  hence  the  motion  to  quash 
the  indictment  ought  to  have  been  sustained." 

In  the  case  of  Mott  v.  State,  29  Ark.,  148,  the  court  says: 
"  The  word  '  feloniously '  must,  of  course,  occur  in  the  indict- 
ment, where  the  offense  is  a  felony.  .  .  .  The  indictment 
charges  that  appellant  wilfully  and  maliciously  set  fire  to  and 
burned  the  court-house,  but  the  word  '  feloniously '  is  omitted. 
The  authorities,  with  scarcely  an  exception,  agree  that  it  is  ab- 
solutely necessary,  in  charging  a  felony,  to  charge  that  the  act 
was  feloniously  done;  .  .  .  that  the  substance  of  a  good 
common-law  indictment  should  be  preserved.  If  one  matter 
of  substance  may  be  dispensed  with,  another  may  be,  and 
where  is  the  limit  to  the  innovation?  .  .  .  This  court  has 
repeatedly  held  that,  in  indictments  for  felonies,  the  word 
'  feloniously '  is  substantive  in  charging  the  offense, —  a  word 
that  has  a  fixed  and  well-defined  le^  '  meaning,  understood 
by  bench  and  bar." 

In  the  case  of  Edwards  v.  State,  25  Ark.,  446,  the  court  says: 
"  The  indictment  charges  that  the  defendant  '  purposely,  and 
of  deliberate  and  premeditated  malice,'  made  the  assault  and 
gave  the  mortal  wound;  and,  in  the  conclusion,  that  he  did 
'puf-posely,  and  of  deliberate  and  premeditated  malice,  kill 
and  murder  the  deceased.'  '  Premeditated '  and  '  aforethought ' 
are  synonymous,  and  'premeditated  malice'  and  '  malice  afore- 
thought '  are  in  sense  and  meaning  the  same,  and  either  form 
of  expression  may,  with  equal  propriety,  be  used;  and  the  in- 
dictment does  therefore,  in  fact,  charge  the  offense  to  have 
been  committed  with  malice  aforethought.  But  the  omission 
of  the  word  'feloniously'  is  not  supplied  by  any  other,  and 
the  authorities,  with  scarcely  an  exception,  agree  that  it  is 
absolutely  necessary,  in  charging  a  felony,  to  allege  that  the 
act  was  felonious!}'  done." 


KAELIN  V.  COMMONWEALTH. 


457 


,  whetlier 
i"feloni- 
Dr  felony, 
the  same 
and  State 

>urt  says: 

nsable  in 

to  quash 

urt  says: 
he  indict- 
idictment 
re  to  and 
I  omitted, 
t  it  is  ab- 
at  the  act 
f  a  good 
e  matter 
be,  and 
court  has 
the  word 
—  a  word 
iderstood 

)urt  says : 
isely,  and 
sault  and 
it  he  did 
ilice,  kill 
ithought ' 
ice  afore- 
her  form 
u  the  in- 
I  to  have 
omission 
ther,  and 
bhat  it  is 
that  the 


I 


In  the  case  of  People  v.  Olivera,  Y  Cal.,  403,  Chief  Justice 
Murray  said :  "  In  my  opinion  it  would  be  impossible  to  allege 
a  felony  without  the  word  '  felonious,'  as  it  is  necessary  to 
show  the  intent  with  which  the  act  was  done.  A  crime  may 
be  the  result  of  wickedness  or  malice,  and  at  the  same  time 
may  not  be  committed  with  a  felonious  intent." 

Many  other  cases  might  be  quoted  from  other  states  to  the 
same  effect  as  the  foregoing  ones,  but  it  is  unnecessary  to  do 
so,  as  they  only  repeated  the  principle  of  the  cases  quoted. 
However,  before  concluding  our  reference  to  authorities  upon 
the  subject,  we  will  make  a  quotation  from  the  case  of  United 
States  V.  Stoats,  8  How.,  44,  45.  The  court  says:  "When 
words  or  terms  of  art  are  used  in  the  description  that  have  a 
technical  meaning  at  common  law,  these  should  be  followed, 
being  the  only  terms  to  express,  in  apt  and  legal  language,  the 
nature  and  character  of  the  crime.  In  all  cases  of  felonies  at 
common  law,  and  some,  also,  by  statute,  the  felonious  intent  is 
deemed  an  essential  ingredient  in  constituting  the  oflfense,  and 
hence  the  indictment  will  be  defective,  even  after  verdict,  un- 
less the  intent  is  averred.  The  rule  has  teen  adhered  to  with 
great  strictness,  and  properly  so,  where  this  intent  is  a  material 
element  of  the  crime.  .  .  .  This  view  accounts  for  the 
necessity  of  the  averment  of  a  felonious  intent  in  all  indict- 
ments for  a  felony  at  common  law,  and  also  in  many  cases 
when  made  so  by  siatute;  because,  if  it  is  used,  in  the  sense  of 
the  law,  to  denote  the  actual  crime  itself,  the  felonious  intent 
becomes  an  essential  ingredient  to  constitute  it.  The  term 
signifying  the  crime  committed,  and  not  the  degree  of  punish- 
ment, the  felonious  intent  is  of  the  essence  of  the  offense,  as 
much  so  as  the  intent  to  maim  or  disfigure  in  the  case  of 
mayhem,  or  to  defraud  in  the  case  of  forgery,  are  essential  in- 
gredients in  consti;-uting  these  several  offenses." 

The  foregoing  cases,  and  others  similar  to  them,  arose  upon 
indictments  for  acts  done  which  were  declared  by  statute  to  be 
felonies,  bul,  did  not  declare  that,  to  constitute  the  crime,  the 
acts  should  be  committed  with  a  felonious  intent.  These  cases, 
therefore,  bear  with  peculiar  force  upon  the  question  at  issue 
here,  and  fully  demonstrate  the  absolute  necessity  of  using  the 
word  "  feloniously  "  in  the  indictment  under  consideration,  the 


''3  !': 


453 


F'(i 


.■i 


^■| 


I  B,  ! 


I^'^h..^. 


AMERICAN  CRIMINAL  REPORTS. 


a    common-law  ofTense,  as  denoting 


crime  charged   being 
the  actual  crime  itself. 

The  true  test  of  a  good  indictment  for  a  felony  at  common 
law  is  that,  if  the  defendant  should  admit  on  the  trial  all  of 
the  material  facts  alleged  in  the  indictment  as  constituting  tlie 
crime  with  which  he  was  charged,  he  would  not  be  permitted 
to  plead  or  give  in  evidence  any  fact  that  would  acquit  him  — 
such  as  self-defense.  Now,  could  the  defendant  admit  all  of 
the  material  facts  alleged  in  this  indictment  as  constituting 
the  crime  of  murder,  and  then  plead  and  prove  that  ho  acted 
in  self-defense?  If  ho  could,  the  indictment  is  clearl}'^  insuffi- 
cient. Suppose,  then,  that  the  experiment  is  made.  IIo  offers 
his  proof  of  self-defense,  but  the  commonwealth's  attorney 
says  to  him:  "You  have  admitted  that  you  unlawfully  killed 
this  woman."  lie  replies:  "No;  I  only  admitted  the  mate- 
rial allegations  of  fact  charged  in  the  indictment  as  constituting 
the  crime  with  which  I  am  charged;  and  the  word  'unlaw- 
fully' is  unnecessary  and  immaterial  in  an  indictment  where- 
the  crime  exists  at  common  law,  and  is  manifestly  illegal,  nor 
can  it  supply  the  place  of  the  word  'feloniously,'  which  indi- 
cates the  crime  itself.  The  word  'unlawfully'  may  indicate 
that  a  tres|)ass,  or  some  lower  grade  of  offense,  was  committed, 
but  not  that  of  a  felony.  See  1  Chit.  Crim.  Law,  211.  J3esides, 
my  defense  is  excusable  homicide,  which  presupposes  some 
fault  or  slight  illegality  of  conduct  on  my  part."  Again,  the 
commonwealth  objects  to  the  evidence  because  he  has  admit, 
ted  that  he  did  the  killing  wilfully  and  cruelly.  IIo  replies 
that,  "admitting  the  word  '  wilfully'  to  be  a  material  alleg.i- 
tion,  yet  the  killing  in  self-defense  is  necessarily  done  '  wilfully.' 
It  does  not  necessarily  imply  malice,  or  that  the  killing  was 
done  with  a  felonious  intent.  I  can  admit  that  I  did  the  kill- 
ing wilfully,  and  still  show  tuat  I  acted  in  self-defense.  As  to 
the  word  'cruelly,'  I  am  not  called  upon  to  admit  that,  because 
it  is  an  unnecessary  and  immaterial  charge.  Besides,  if  I  acted 
in  self-defense,  it  makes  no  difference  how  cruel  a  stroke  was 
given;  it  is  only  strong  evidence  of  malice,  but  is  not  conclu- 
sive of  guilt."  "But,"  says  the  commonwealth's  attorney, 
"you  have  admitted  that  you  did  the  killing  with  malice  afore- 
thought."   IIo  replies:   "I  admitted  that  when  I  did  the 


KAELIN  V.  COMMONWEALTH. 


459 


killing  I  had  malice  towards  the  deceased,  but  malice  does 
not  denote  the  act  itself.  The  word  'feloniously '  is  essential 
to  fix  the  actual  crime  of  felony.  The  felonious  intent  is  the 
essential  ingredient  to  constitute  it.  Without  such  intent  ex- 
isting in  fact,  or  by  construction  of  law,  no  felony  at  common 
law  can  be  committed.  The  word  '  feloniously '  denotes  the 
crime  itself.  The  proof  of  malice,  therefore,  is  admissible,  not 
as  constituting  a  felony,  l^ecause  a  felony  ma}'  exist  without 
malice,  but  to  increase  the  punishment  of  the  felony.  In  the 
nature  of  things,  the  words  'felonious'  and  'malice'  are  not 
equivalent  or  synonymous  terras  —  not  of  the  same  legal  im- 
port. Siate  V.  Gove,  3  N.  H.,  561.  Therefore,  as  the  words 
'  malice  aforethought '  do  not  charge  or  denote  a  felony,  but 
only  increase  the  punishment  when  the  felony  is  established, 
I  can  show  that  I  did  not,  in  fact,  commit  a  felony.  I  have, 
it  is  true,  admitted  that  at  the  time  of  the  killing  I  had  malice 
towards  the  deceased,  but  that  fact  does  not  prevent  me  from 
showing  that  I  acted  in  self-defense.  The  ground  of  self- 
defense  does  not  preclude  the  idea  of  malice;  the  jury  is  not 
told  that  if  they  believe  that  the  accused  acted  without  malice, 
and  in  self-defense,  they  must  acquit.  Tiie  feelings  of  ill-will 
or  of  malice  of  the  accused  towards  the  deceased  do  not  pre- 
clude him  from  relying  on  self-defense.  lie  may  have  tiiose 
feelings  towards  the  deceased,  yet  he  has  the  right  to  strike 
and  kill  in  his  necessary  self-defense.  Those  feelings  are  evi- 
dence against  him  to  show  that  his  plea  of  sell-defense  is  a 
sham,  etc.,  but,  oven  though  established,  cannot  deprive  him  of 
the  benefit  of  his  plea."  So  we  see  that  all  of  the  material 
allegations  alleged  in  the  indictment  as  constituting  the  crime 
of  murder  might  be  admitted,  yet  the  defendant  would  have 
the  right,  notwithstanding  the  admission,  to  plead  self-defense. 
On  the  other  hand,  if  it  were  charged  in  the  indictment,  in 
addition  to  the  other  charges  therein,  that  the  killing  was  felo- 
niously done,  thereby  indicating  and  fixing  the  crime  itself, 
then,  that  fact  being  admitted,  no  plea  of  self-defense  could  be 
heard.  For  the  foregoing  reasons  we  think  that  the  indict 
ment  is  insufficient,  and  the  demurrer  to  it  should  have  been 
sustained. 

The  case  of  Jane  v.  Com.,  3  Mete.  (Ky.),  18,  is  relied  on  by 
the  commonwealth  as  sustaining  the  sufficiency  of  this  indict- 


I 


m 


I,  .11  iij. 


460 


AMERICAN  CRIMINAL  REPORTS. 


d 


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M.  JkS 

B^^'  •/ 

ment.  In  that  case  the  indictment  was  for  murder,  but  tho 
word  ''feloniously"  was  omitted.  All  of  the  other  material 
allegations,  however,  were  made.  There  was  no  demurrer  to 
the  indictment.  After  the  trial  and  conviction  of  tlio  defend- 
ant she  moved  to  arrest  the  judgment,  which  motion  was 
overruled  by  tho  trial  court.  She  appealed  from  that  ruling 
to  this  court.  This  court  did  not  hold  that  the  word  "felo- 
niously" was  not  a  necessary  averment  in  the  indictment, 
but  simply  held  tliat  this  court,  under  the  Criminal  Code  of 
Practice  then  in  force,  could  not  reverse  the  judgment  of  the 
lower  conrt  in  overruling  the  motion  in  arrest  of  the  judg- 
ment of  conviction,  because  the  substantial  rights  of  the  appel- 
lant, on  tho  merits,  were  not  prejudiced  by  overruling  the 
motion.  The  one  hundred  and  twenty-ninth  section:  "But 
no  indictment  is  insufficient,  nor  can  the  trial,  judgment  or 
other  proceedings  thereon  be  affected,  by  any  defect  which 
does  not  tend  to  the  prejudice  of  the  substantial  rights  of  the 
defendant  on  the  merits." 

The  provision  sttpra  of  the  old  code  was  left  out  of  the 
present  Code  of  Practice,  nor  is  there  any  similar  provision 
contained  therein;  so  the  case  of  Jane  v.  Com.  is  not  now  an 
authority  controlling  the  present  question.  Besides,  in  this 
case  there  was  a  demurrer  entered  to  tho  indictment,  which, 
unlike  the  motion  in  arrest  of  judgment  under  the  old  code, 
wherein  the  merits  of  the  case  entered  into  the  consideration 
of  the  motion,  goes  directly  to  the  legal  sufficiencj'  of  the  in- 
dictment. 

The  second  ground  of  objection  to  the  ruling  of  the  court 
below  relates  to  the  following  evidence  of  Mr.  Baldwin,  which 
the  court  permitted  to  go  to  the  jury :  "  Question  hy  the  Com- 
monwealth. Heard  you  any  talk  of  what  they  [the  persons  as- 
sembled there]  would  do  with  the  man  that  killed  the  woman? 
Answer.  Some  said  to  hang  him.  Q.  What  threats  were 
made  upon  that  occasion  within  the  hearing  of  tliis  man?  A. 
While  I  was  there,  several  expressed  themselves  that  he  ought 
to  be  hung,"  etc. 

This  evidence  was  clearly  incompetent.  This  court,  in  tho 
case  of  Bradishaw  v.  Com.,  10  Bush,  577,  held  similar  evidenco 
to  be  incompetent;  also  in  the  case  of  Werner  v.  Com.,  80  Ky., 
387,  this  court  held  similar  evidence  to  be  incompetent.    Tlio 


KAELIN  V.  COMMONWEALTH. 


461 


^S' 


exclamations  or  expressions  of  opinion  of  the  by-standors  did 
not  come  from  any  one  acting  in  concert  with  the  defendant, 
nor  did  the  exclamations  come  from  anv  one  concerned  in  the 
fact  of  killing.  The  exclamations  came  from  mere  by-standers, 
giving  expression  to  the  opinion  that  appellant  ought  to  be 
hung,  etc.  Such  evidence  was  clearly  hearsay,  and  should  have 
been  rejected  by  the  court.  The  fact  that  the  appellant  heard 
the  exclamations,  and  did  not  deny  the  implied  charge  con- 
tained in  them  that  he  was  the  guilty  party,  did  not  make  the 
evidence  competent.  He  was,  if  he  bad  been  in  a  condition 
to  do  so,  under  no  obligation  to  deny  the  charge.  No  charge 
was  made  directly  to  him  that  he  had  killed  the  woman.  The 
exclamations  of  an  excited  crowd,  as  to  what  ought  to  be  done 
w^ith  him,  he  was  not  called  upon  to  answer.  His  silence, 
therefore,  was  no  implied  admission  of  his  guilt. 

The  instruction  No.  4  given  by  the  court  g.ves  the  law  of 
insanity  in  accordance  with  the  views  of  this  court  in  the  case 
of  Brown  v.  Com.,  14  Bush,  398,  and  is  fully  as  favorable  to 
the  appellant  as  he  is  entitled  to. 

The  court  did  not  err  in  refusing  to  continue  the  case,  and 
issue  a  commission  to  take  depositions  in  Switzerland  on  be- 
half of  appellant.  There  is  no  inherent  power  in  a  common- 
law  court  to  issue  commissions  to  take  depositions  to  be  read 
in  behalf  of  litigants  in  a  civil  or  criminal  case.  The  right  to 
use  the  depositions  of  witnesses  in  a  common-law  court  de- 
pends upon  statutory  regulations.  The  legislature  of  the  state 
has  the  right  to  allow  defendants  in  criminal  cases  to  take  and 
use  the  depositions  of  witnesses  in  their  behalf,  and  to  say  how 
and  under  what  circumstances  they  may  be  taken,  etc.  There 
is  no  constitutional  inhibition  against  the  state  allowing  de- 
fendants in  criminal  cases  to  take  and  use  the  depositions  of 
witnesses  in  their  behalf.  The  constitution  entitles  the  ac- 
cused, in  criminal  and  penal  cases,  to  meet  his  accusers  face  to 
face,  and  to  be  confronted  with  the  witnesses  against  him. 
The  state,  therefore,  cannot  authorize  the  taking  and  using  of 
depositions  of  witnesses  against  him,  but  he  may  use  the  dep- 
ositions of  witnesses  in  his  behalf  under  any  state  of  case  that 
the  legislature  may  allow.  His  right,  however,  in  this  regard 
is  controlled  by  the  legislature.  The  legislature  of  this  state 
has  provided  that  the  defendant  in  a  criminal  case  may  take 


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402 


AMERICAN  CRIMINAL  REPORTS. 


the  depositions  of  his  witnesses,  to  be  used  in  his  behalf,  if 
if  they  are  about  to  leave  the  state  without  his  procurement 
or  consent,  or  are  physically  unable  to  attend  for  examination 
in  court,  or  that  their  death  is  apprehended.  As  the  right  to 
take  and  usd  depositions  in  common-law  cases,  and  in  criminal 
cases,  in  behalf  of  the  defendant,  is  a  statutory  right,  and  the 
legislature  of  the  state  having  said  in  what  state  of  case  the 
defendant  in  a  criminal  case  may  take  the  depositions  of  wit- 
nesses to  be  used  in  his  behalf,  it  follows  that  ho  cannot  take 
the  depositions  of  witnesses  in  any  state  of  case  not  provided 
for  by  the  legislature. 

"We  think  that  the  court  erred  in  not  sustaining  the  demurrer 
to  the  indictment,  and  in  permitting  the  witness  Baldwin  to 
testify  as  to  what  the  people  said  who  had  assembled  at  the 
house  of  appellant  just  after  the  killing,  and  in  not  granting 
appellant  a  new  trial. 

The  case  is  reversed,  with  directions  for  further  proceedings 
consistent  with  this  opinion. 


BoNNARD  V.  State. 

(25  Tex.  App.,  173.) 

Murder  :  Bias  of  witness  —  Declarations  of  accused  —  Hostility  between  de- 
ceased and  accused  —  Self-defense. 

1.  Witness  — Impeachment  — Bias  of  witness.— On  a  trial  for  murder, 

evidence  tliut,  on  the  night  before  the  homicide,  the  principal  witness 
for  the  state  had  a  quarrel  with  defendant  and  said :  "  I  will  see  you 
again,  and  shoot  a  hole  in  you  a  yellow  dog  can  jump  through.  I  am 
all  wool,  a  yard  wide,  and  hard  to  curry,"  —  is  admissible  to  show  the 
hostility  and  bias  of  witness  against  defendant. 

2.  Evidence  — Declaration  of  accused.— Shortly  after  defendant  shot 

deceased  he  made  a  false  statement  to  certain  persons  about  the  shoot- 
ing,  which  was  given  in  evidence  by  the  state.  Held,  that  under  Code 
of  Criminal  Procedure  of  Texas,  article  751,  providing  "  when  a  de- 
tailed .  .  .  conversation  is  given  in  evidence,  any  other  declara- 
tion .  .  .  necessary  to  make  it  understood,  or  explain  the  same, 
may  also  be  given  in  evidence,"  defendant  was  entitled  to  show  that 
later  on  the  same  evening  he  made  a  different  statement  to  his  brother, 
and  explained  to  him  the  reasons  for  making  the  former  statement.  ^ 


>  See  note. 


BONNARD  V.  STATE. 


463 


8.  MuRDEn  — Previuus  intention  to  fiqht  — Threats.— Where  it  ap- 
pears that  defendant  and  deceased  had  been  at  enmity ;  tliut  defend- 
ant had  threatened  deceased,  and  the  latter  expected  and  was  prepared 
for  trouble ;  and  timt  both  had  their  minds  made  up  to  bring  on  a 
quarrel  when  they  met,  and  kill,  or  inflict  injury  which  might  result 
in  the  death  of  the  other,  and  a  difflculty  hikI  <icntli  did  ensue,  no 
matter  which  provoked  it,  tlie  party  killing  will  be  guilty  of  nmrder. 

4.  Manslaughter  —  Sudden   passion  — Instruction.— Where   the  evi- 

dence tended  to  show  that  defendant,  without  hostile  intent,  sought 
an  interview  with  deceased,  who  becam*  caragrl,  and  atsnulted  de- 
fendant, inflicting  pain,  and  defendant,  under  the  passion  thus  en- 
yenderod,  killed  deceased,  the  pain  would  aniovat  to  "adequate 
cause,"  so  ns  to  reduce  the  killing  to  manslaug'Uer,  and  failure  to  aflirm- 
atively  so  charge  was  error. 

5.  Justifiable  homicide  —  Self-defense. —  Where  there  was  evidence 

tending  to  show  that  defendant,  without  hostile  intent,  but  for  the 
,  purpose  of  demanding  p.iy  for  certain  spurs,  sought  an  interview  with 
deceased,  and  a  quarrel  ensued  in  which  deceased  made  rn  assault 
with  a  pistol  en  defendant  so  as  to  create  in  defendant's  mind  a  reason- 
able apprehension  of  death  or  serious  bodily  harm,  and,  acting  on 
such  apprehension,  defendant  shot  and  killed  deceased,  the  killing  was 
justiflable  on  the  ground  of  self-defense.^ 

Appeal  from  District  Court  of  Johnson  County ;  tried  before 
Hon.  J.  M.  Hall,  Judge. 

Indictment  against  Ilarve  Bernard  for  murder  by  shooting 
one  Ben  Shultz.  There  wsls  a  conviction  of  murder  in  the 
second  degree,  and  from  a  sentence  of  seven  years  in  the  peni- 
tentiary defendant  appeals. 

Poindexter  &  Padelford,  for  appellant. 

M.  L.  Davidson,  assistant  attorney-^'eneral,  for  the  state. 

White,  P.  J.  This  appeal  is  from  a  judgment  of  conviction 
for  murder  of  the  second  degree.  Twenty  errors  are  assigned 
for  a  reversal,  and  they  relate  first  to  exclusion  of  evidence; 
second,  to  errors  in  the  charge  of  the  court  to  the  jury ;  third, 
to  the  refusal  of  special  instructions  requested  by  defendant; 
fourth,  to  the  insufficiency  of  the  evidence  to  support  the  ver- 
dict; and  fifth,  to  the  overruling  of  defendant's  motion  for  new 
trial.  We  do  not  propose  to  discuss  all  of  the  errors  assigned, 
but  will  select  those  which  are,  in  our  opinion,  the  most  im- 
portant. 

1.  It  was  error  to  exclude  the  testimony  of  the  witness  Joe 

1  See  note. 


• '! ! 
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464 


AMERICAN  CRIMINAL  REPORTS. 


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Bedwell,  as  shown  by  the  first  bill  of  exceptions,  to  the  effect 
that  on  the  night  before  the  shooting  a  difficulty  occurred  at  a 
party  at  the  house  of  one  Page,  between  the  principal  state's 
witness,  Ike  Moore,  and  defendant,  in  which  the  witness  Moore 
had  followed  the  defendant  out  of  the  gate, and,  when  defend- 
ant told  him  to  stop  following  him,  turned  away  with  the  re- 
mark, *'  I  will  see  you  again,  and  shoot  a  hole  through  you  a 
yellow  dog  can  go  through.  lama  yard  wide,  all  wool,  and 
hard  to  curry."  This  evidence  was  admissible  to  show  the  mo- 
tives, animus  and  extent  of  the  feelings  of  the  witness  towards 
the  defendant.  "  The  motives  which  operate  upon  the  mind 
of  a  witness  when  he  testifies  are  never  regarded  as  immaterial 
or  collateral  matters."  Gainea  v.  Com.,  50  Pa.  St.,  319-326. 
As  to  hostiltt}',  interest  or  bias  against  a  defendant,  a  witness 
may  be  contradicted,  if  he  denies  them,  by  evidence  of  his 
own  statements,  or  other  implicator}'  facts.  *'  The  same  rule 
applies  to  questions  as  to  quarrels  "between  the  witness  and  the 
party  against  whom  he  is  called."  Whart.  Crim.  Ev.,  §  485; 
1  Greenl.  Ev.  (13th  ed.),  455;  Hart  v.  State,  15  Tex.  App.,  202; 
Favors  v.  State,  20  Tex.  App.,  156;  lioisboroiKjh  v.  Slate,  21 
Tex.  App.,  672.  See,  also,  upon  this  point,  Newcomh  v.  State, 
37  Miss.,  383;  and  also  the  case  of  Kent  v.  State  (Ohio),  re- 
ported in  full  in  6  Crim.  Law  Mag.,  520,  in  which  the  cases  are 
reviewed,  and  the  doctrine  upon  the  subject  elaborately  dis- 
cussed. It  is  shown,  b}'  the  evidence,  that  tiie  witness  Moore 
had  been  a  party  to,  and  associated  with,  the  deceased  in  all 
the  troubles  and  difficulties  between  the  latter  and  the  defend- 
ant, and  the  extent  to  which  he  was  biased  was  legitimate 
matter  to  be  considered  by  the  jury  in  determining  the  credi- 
bility of  his  testimony. 

Defendant's  fourth  bill  of  exceptions  was  taken  to  the  ex- 
clusion of  his  statements  to  his  brother,  John  Bonnard,  on  the 
night  of,  and  when  he  first  met  his  brother  after,  thedifiiculty, 
in  which  he  detailed  all  the  circumstances  of  the  difficulty 
fully,  and  in  which  he  also  explained  to  his  brother  the  fact 
that  he  had  related  the  circumstances  difi'erently  to  the  young 
ladies  at  Mrs.  Welch's  immediately  upon  his  return  from  the 
scene  of  the  difficulty,  and  told  him  the  reason  which  induced 
and  influenced  him  in  making  the  statement,  as  he  did  make 
it,  to  those  young  ladies.   The  prosecution  had  proved  by  these 


BONNARD  V.  STATE. 


465 


young  ladies  what  defendant's  statements  to  them  had  been, 
and  the  defense  proposed  to  prove  the  statements  mnde  to  his 
brother,  in  order  to  explain  these  statements,  nndei-  the  stat- 
utory rule  that  "  when  a  detailed  act,  declaration,  conversation 
or  writing  is  given  in  evidence,  any  other  act,  declaration  or 
writing  which  is  necessary  to  make  it  understood,  or  to  explain 
the  same,  may  also  be  given  in  evidence."  Code  Crim.  Proc, 
art.  751.  We  are  of  opinion  that  the  bill  of  exceptions  brings 
the  excluded  evidence  directly  within  the  purview  of  the  rule 
as  the  same  has  heretofore  been  construed  by  this  court  in 
Greene  v.  State,  17  Tex.  App.,  395 ;  Harrison  v.  State,  20  Tex. 
App.,  387;  Jiainey  v.  State,  20  Tex.  App.,  455;  Ga'ither  v.  State, 
21  Tex.  App.,  528;  and  that  it  was  error  to  exclude  the  testi- 
mony. This  case  is  not  analogous  to  Gibson  v.  State,  23  Tex. 
App.,  414,  in  this  particular. 

Appellant  having  been  convicted  of  murder  in  the  second 
degree,  this  eliminates  from  discussion  all  questions  as  to  the 
correctness  of  the  charge  of  the  court  as  to  murder  of  the  first 
degree.  As  to  n.urder  of  the  second  degree,  manslaughter,  self- 
defense,  etc.,  many  attacks  are  made  upon  the  charge  as  a 
whole,  and  to  each  particular  paragraph,  as  well  as  to  the  ac- 
tion of  the  court  in  refusing  all  of  defendant's  special  requested 
instructions.  It  would  be  a  useless  consumption  of  time  to 
attempt  a  review  of  all  the  matters  thus  presented,  and  so 
strenuously  urged  in  the  oral  argument  and  able  brief  of  coun- 
sel for  appellant.  Sullice  it  to  say  that  inquite  a  number  of 
the  particulars  mentioned  the  charge  is  to  some  extent  confus- 
ing, if  not  misleading,  and,  in  one  of  the  particulars  specially 
complained  of,  clearh'  erroneous.  AVe  will  summarize  the 
several  phases  in  which  the  evidence  presents  the  case  to  our 
minds,  and  to  which  the  charge  should  have  been  mainly,  per- 
tinently and  affirmatively  directed. 

2.  The  state's  theory  was  that  defendant  and  deceased  had 
been  at  enmit}'  for  some  months,  and  defendant  had  made 
serious  threats  aga'^st  *Iie  deceased;  that  these  threats  had, 
perhaps,  been  communicated  to  deceased,  and  he  was  antici- 
pating and  prepared  for  trouble  with  defendant  when  he  should 
next  meet  him.  Now,  if  under  those  circumstances  both  par- 
ties had  determined  in  their  minds  to  bring  on  a  difficulty 
when  they  should  meet,  in  which  the  one  intended  to  kill  the 
Vol.  VII  — ;iO 


466 


AMERICAN  CRIMINAL  REPORTS. 


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other,  or  inflict  serious  bodily  injury  which  might  result  in 
death,  then,  if  such  was  the  case,  and  a  difficulty  and  death 
ensued,  no  matter  which  provoked  it,  the  party  killing  would 
be  guilty  of  murder.    Penal  Code,  art.  603. 

3.  If  defendant,  however,  diJ  not  intend  to  provoke  a  diffi- 
culty with  deceased,  but  sought  the  interview  with  him  solely 
for  the  purpose  of  demanding  pay  for  his  spurs,  and  a  diffi- 
culty ensued  in  which  defendant,  on  account  of  abuse  heaped 
upon  him  by  deceased,  voluntarily  slew  him  in  heat  of  pas- 
sion engendered  by  the  present  abuse,  taken  in  connection 
with  the  previous  wrongs  done  him  by  deceased,  and  the  cir- 
cumstances, all  together  combined,  were  of  such  a  charac 
ter  as  to  produce  *'  adequate  cause "  sufficient  to  render  the 
mind  incapable  of  cool  reflection,  then  such  killing  would 
be  manslaughter,  Wadlington  v.  State,  19  Tex.  App.,  2G6; 
Johnson  v.  State,  2'2i  Tex.  App.,  206 ;  Howard  v.  State,  23  Tex. 
App.,  265. 

4.  If  defendant  sought  an  interview  with  deceased  with  no 
hostile  intentions,  and  deceased  became  enraged,  and  com- 
mitted an  assault  upon  defendant,  which  did  inflict  pain  or 
bloodshed,  and  under  the  passion  thus  engendered  defend- 
ant shot  and  killed  deceased,  the  pain  or  bloodshed  would 
amount  to  "  adequate  cause,"  and  the  killing  would  be  man- 
slaughter. The  charge  of  the  court  was  radically  defective 
in  not  presenting  this  phase  of  the  law  of  the  case  in  affirma- 
tive terms.  Hill  v.  State,  8  Tex.  App.,  H2 ;  Fontet'  v.  State,  id., 
249. 

5.  If  defendant  sought  the  interview  with  deceased  with  no 
hostile  intentions,  but  simply  and  solely  to  demand  a  settle- 
ment and  pay  for  his  spurs,  and  deceased  became  angry,  and 
a  wordy  altercation  ensued,  during  which  deceased  drew  his 
pistol,  and  assaulted  defendant  with  it  in  such  manner  as  to 
create  in  defendant's  mind  a  reasonable  apprehension  of  death 
or  serious  bodily  injury,  and,  acting  upon  such  reasonable  ap- 
prehension, defendant  fired  the  fatal  shot,  then  and  in  that 
event  he  would  be  justiiied  upon  the  ground  of  necessar}"^ 
self-defense.    Willson's  Crini.  Stat.,  §  1070. 

These,  in  our  opinion,  are  in  brief  the  essential  principles 
of  law  applicable  to  the  facts  of  the  case  as  shown  by  the 
record,  and  they  should  have  been  submitted  plainly,  fully 


BONNARD  V.  STATE. 


467 


resalt  in 
ad  death 
ig  would 


and  affirmatively,  and  without  unnecessary  verbiage,  by  the 
charge.  For  the  errors  pointed  out  the  judgment  i"  reversed 
and  the  cause  remanded. 


:e  a  difR- 
im  solely 
da  diffi. 
e  heaped 
t  of  pas- 
mnection 
i  the  cir- 
i  cbarac 
(nder  the 
ig  would 
pp.,  206; 
,  23  Tex. 

1  with  no 
and  coni- 
t  pain  or 
j.  defend- 
d  would 
be  man- 
defective 
1  aifirma- 
State,  id., 

1  with  no 
a  settle- 
igry,  and 
drew  his 
tier  as  to 
I  of  death 
nable  ap- 
d  in  that 
necessary 

principles 
n  by  the 
ily,  fully 


T^OTK.— Self -defense  —  Hostility  of  parties.— Where  it  clearly  appears 
that  the  accused  and  the  deceased  had  lived  in  avowed,  open  hostility,  each 
going  armed  in  anticipation  of  a  deadly  assault  from  the  other,  it  is  wholly 
immaterial  which  of  them  struck  the  first  blow  on  the  occasion  of  an 
actual  encounter  between  them  fatal  to  either.  Sneed  v.  State,  47  Ark., 
180, 

All  the  incidents,  conversations  and  actions  incident  to  the  transactions 
which  led  up  to  the  kilhng,  on  the  same  evening,  and  during  a  party  at 
wliich  the  killing  took  place,  are  admissible,  though  separated  by  brief  in- 
tervals of  time  from  the  killing.    Jordan  v.  State,  81  Ala.,  20. 

Character  of  deceased  —  Threats  and  assault  by  deceased.—  In  a  trial  for 
murder,  the  judge's  instructions  to  the  jury  to  the  effect  that  if  they 
found  defendant  had  armed  liiraself  with  a  gun,  and  started  out  to  kill  de- 
ceased, and  had  met  and  killed  him,  that  then  it  would  make  no  difference 
who  commenced  the  assault,  and  the  jury  sliould  not  acquit  the  defend- 
ant, and  further  instructions  to  disregard  evidence  that  the  character  of 
the  deceased  for  peace  and  quiet  was  bad,  and  to  disregard  all  evidence  as 
to  threats  made  by  deceased  against  the  defendant,  are  error.  State  v. 
Reder,  90  Mo.,  54. 

Declarations  of  deceased  —  Res  gestce  —  Dying  declaration. —  In  a  trial 
for  murder,  evidence  of  the  wife  of  deceased  that,  after  her  husband  was 
shot,  he  said  to  her,  "  Oh  hun,  he  has  killed  me! "  or,  "  Oh  hun,  he  has  shot 
me  I "  after  he  had  gone  two  hundred  yards  from  the  place  where  he  was 
shot,  and  called  her,  and  she  went  to  him,  traveling  one  hundred  yards,  is 
not  admissible,  being  no  part  of  the  res  gestm,  nor  is  it  admissible  as  a  dying 
declaration,  she  not  being  positive  whether  the  word  was  "shot"  or 
"  killed,"  and  there  being  no  proof  the  words  were  said  under  a  sense  of 
impending  death.    Ihid. 

Same. —  In  a  trial  for  murder  a  witness  testified  to  hearing  one  M.  state 
in  a  conversation,  shortly  after  the  killing,  that  he  did  not  shoot  deceased; 
M.,  on  the  stand,  testified  he  did  not  discharge  a  pistol  that  night.  De- 
fendant had  shown  that  deceased  had  charged  M.  in  his  presence  with 
killing  her,  and  the  declaration  of  M.,  denying  it,  was  made  at  that  time. 
Held,  that  it  was  properly  admitted  as  a  part  of  the  conversation  intro- 
duced by  defendant.    People  v.  Driscoll,  107  N.  Y.,  414. 

Same. —  lathis  case  it  was  in  evidence  that  one  M.,  after  the  shooting, 
gave  up  his  pistol  to  an  officer;  that  it  was  loaded,  and  the  barrels  were 
cold.  Defendant,  when  another  witness  attempted  to  show  the  same  facts, 
objected,  and  asked  to  have  it  stricken  out.  Held,  that  as  the  same  evi- 
dence was  already  in,  without  objection,  it  was  useless  to  grant  the  motion, 
and  it  was  competent  to  rebut  an  effort  to  affi.\  the  guilt  on  M.    Ibid, 

Same. —  A  witness  had  testified,  without  objection,  that  one  M.  had, 
after  the  homicide,  given  up  his  pistol  to  an  officer ;  that  it  was  loaded,  and 
the  barrel  was  cold.    The  court  repeated  the  testimony,  and  asked  the 


ir  e 


468 


AMERICAN  CRIMINAL  REPORTS. 


1i 


1 


witness  if  that  was  right.  He  answered  "  Tes,"  and  the  defendant  asked 
to  have  the  answer  stricken  out.    Held,  that  it  was  properly  denied.    Ibid. 

Homicide  —  By  negligence. — Where  a  husband,  on  trial  for  the  mmder  of 
his  wife,  was  shown  to  have  been  in  a  quarrel  with  a  neighbor  in  the  for- 
mer's door-yard,  and  was  waving  a  pistol,  and  threatening,  without  any  ap- 
parent intention,  to  shoot,  and  his  wife  was  shot  upon  coining  to  the  door, 
and  urging  him  to  come  in,  and  her  dying  declarations  were  that  the 
shooting  was  accidental  while  trying  to  take  the  pistol  from  her  Inis- 
band's  hand,  it  was  error  to  refuse  to  instruct  the  jury  on  the  law  of 
negligent  homicide,  under  Penal  Code  of  Texas,  articles  584,  585,  providing 
that,  "  to  bring  the  offense  within  the  definition  of  homicide  by  negligence, 
there  must  be  no  apparent  intention  to  kill.  The  homicide  must  be  the  con- 
sequence of  the  act  done  or  intended  to  be  done."  Howard  v.  State,  23 
Tex.  App.,  265. 

Threats,—  At  the  trial  of  a  husband  for  the  murder  of  his  wife,  the 
previous  threats  of  the  husband,  and  difficulties  between  the  parties,  may 
be  given  in  evidence  to  show  the  state  of  the  accused's  mind  and  his  malice. 
Ibid. 

Instruction  as  to  contradictory  statements.— "Where  evidence  was  intro- 
duced by  defendant  to  show  that  the  principal  witness  for  the  prosecution 
had  given  contradictory  testimony  on  the  examining  trial,  it  was  error  to 
instruct  the  jury  that  the  evidence  was  not  for  the  purpose  of  proving  that 
the  witness  had  sworn  falsely,  but  to  enable  them  the  better  to  judge  of 
the  credibility  and  worthiness  of  belief  of  the  witness,  as  the  very  object 
of  such  evidence  is  to  discredit  and  falsifj'  the  witness.     Ibid. 

Evidence  —  Declarations  of  defendant's  paramour. —  In  a  prosecution  for 
murder,  where  it  appeared  that  the  deceased  suspected  defendant  of  lieing 
his  mother's  paramour,  and  that  he  was  killed  by  defendant  in  an  affray 
resulting  from  an  attempt  by  deceased  to  eject  defendant  from  the  motlier'a 
house,  held  that,  even  if  there  was  evidence  tending  to  show  that  the 
mother  conspired  with  defendant  to  kill  her  son,  yet  lier  declarations  re- 
garding the  homicide,  made  subsequent  thereto,  in  the  absence  of  defend- 
ant, were  not  admissible  against  defendant.  People  r.  Gonzales,  71  Cal.. 
569. 

So,  also,  similar  declarations  of  a  sister  of  deceased  are  inadmissible. 
Ibid. 

Self-defense  —  Instruction. —  An  instruction  that  "  a  defendant  caimot,  in 
any  case,  justify  killing  another  by  a  pretense  of  necessity,  unless  he  was 
wholly  without  fault  in  bringing  that  necessity  on  himself,"  is  erroneous. 
Ibid. 

Necessity. —  An  instiuction  that  "  the  necessity  must  be  apparent,  actual, 
imminent,  absolute,  and  unavoidable,"  is  contradictory  and  misleading. 
Ibid. 

Duty  to  avoid  encounter. —  A  man  who  expects  to  be  attacked  is  not 
always  bound  to  employ  all  the  means  in  his  power  to  avert  the  necessity 
of  self-defense.    Ibid, 

Danger — Defendant's  belief. — To  render  a  homicide  justifiable  on  the 
ground  of  self-defense,  not  only  must  defendant  be  in  appuiently  immi- 
nent danger,  but  he  must  believe  that  he  is  so.    Ibid, 


"1 


idant  asked 
aied.  Ibid. 
e  murder  of 

in  the  for- 
iout  any  ap- 
;o  the  door, 
re  that  the 
n  her  hus- 
the  law  of 
»,  providing 
negligence, 

be  the  con- 
V.  State,  23 

is  wife,  the 

larties,  may 

his  malice. 

3  was  intro- 
prosecution 
.'aa  error  to 
)roving  that 
to  judge  of 
very  object 

isecution  for 
tut  of  being 
n  an  affray 
he  mother's 
w  that  the 
arations  rc- 
:  of  defend- 
iles,  71  Cal.. 

ladmissibli'. 

it  cannot,  in 
less  he  was 
;  erroneous. 

•ent,  actual, 
misleading. 

eked  is  not 
tie  necessity 

able  on  the 
2ntly  imnii- 


GARRETT  v.  STATE. 


469 


Means  of  defense  — Defendant's  belief.— An  iuatrnction  excluding  from 
the  jury  the  consideration  of  the  question  whether  or  not  defendant  had 
apparently,  to  his  comprehension  as  a  reasonable  man,  the  means  at  hand 
to  avoid  killing  deceased,  without  incurring  imminent  danger  of  great 
bodily  harm,  is  erroneous.    Ibid. 

Instruction  —  Evidence  shewing  other  ojfenses.— Evidence  tending  to 
show  the  prisoner  guilty  of  the  crime  charged  is  properly  admitted,  al- 
though it  also  tends  to  show  him  guilty  of  other  offenses,  when  the  jury 
are  properly  instructed  that  they  are  not  to  convict  the  defendant  because 
the  evidence  shows  him  a  man  of  bad  character  in  having  committed  the 
other  offenses,  and  are  only  to  consider  the  evidence  in  its  connection  with 
the  oflfense  for  which  the  prisoner  is  on  trial.    People  v.  Rogers,  71  Cal.,  565. 

Killing  while  attempting  to  rob. — Where  a  party,  while  attempting  to 
perpetrate  a  robbery,  shoots  and  kills  the  party  attempted  to  be  robbed,  he 
is  guilty  of  murder  in  the  first  degree.    State  v.  Gray,  19  Nev.,  312, 

Instruction. —  In  such  case  the  jury  may  be  instructed  that,  if  they  find 
that  the  accused  shot  and  killed  the  deceased  while  attempting  to  perpe- 
trate a  robbery  f>n  him,  they  had  no  option  but  to  find  the  perpetrator  guilty 
of  murder  of  the  first  degree.    Ibid. 

Murder — Grade  of  the  offense  —  Reasonable  douW.— Where  the  fact 
of  the  killing  is  admitted,  but  evidence  is  introduced  to  show  that  de- 
fendant was  violently  attacked  on  his  own  premises  by  deceased  and  his 
companion,  in  such  manner  as  to  warrant  him  in  believing  that  he  was  in 
danger  of  great  bodily  harm  or  loss  of  life,  it  is  error  to  refuse  to  instruct 
the  jury  that  a  reasonable  doubt  as  to  the  existence  of  malice  is  sufficient 
to  reduce  the  homicide  below  murder  in  the  second  degree.  Tiffany  v. 
Com.,  121  Pa.  St.,  165. 

Self-defense. —  The  deceased  and  his  companion  having  come  upon  the 
defendant's  premises,  and  used  violent  and  threatening  language,  defend- 
ant had  a  right  to  order  them  off  the  premises,  but  lie  had  no  right  to  fol- 
low them  "  up  until  an  attack  was  made  upon  him  so  fierce  as  to  put  him 
on  self-defense."    Ibid. 

Reputation  of  deceased^ s  companion. —  Defendant  having  been  assaulted 
by  deceased  and  his  companion,  evidence  is  admissible[that  the  companion 
of  deceased  had  a  bad  reputation  as  a  quarrelsome  and  dangerous  man, 
and  that  this  wa^  known  to  defendant  at  the  time  of  the  killing.    Ibid. 


Joseph  Garrett  v.  State. 
William  H.  Garrett  v.  State. 

49N.  J.(Law),  94. 

Nuisance  :  License  of  board  of  health  no  defense. 

1.  A  LICENSE  from  A  COUNTY  BOARD  OF  HEALTH  to  manufacture  "  fertil- 
izers and  materials"  does  not  authorize  such  manufacture  in  away  to 
create  a  public  nuisance.    A  request  to  charge  that  a  license  is  a  de- 


W  1\ 


m 


AMEBICAN  CRIMINAL  REPORTS. 


i'J.      1 


umi 


r    > 

'1      I 


I 


'"If 


': 


'I 


\f  ■ 


Li 


:■  I 


fense  to  an  indictment  for  creating  a  public  nuisance  was  properly 
refused,  and  a  charge  that  such  a  license  was  no  defense  to  an  indici- 
ment  for  nuisance  created  by  the  licensees  in  their  business  was  unob- 
jectionable. 

2.  The  leqislature  has  power  to  legalize,  so  far  as  the  public  is  con- 
cerned, an  act  or  business  which  would  otherwise  be  a  public  nuisance. 
Such  grant,  being  against  common  right,  should  receive  strict  interpre- 
tation. 

8.  The  powers  conferred  bt  the  legislature  upon  boards  of  health 
of  this  state  are  to  restrain  and  suppress  public  nuisances,  not  to 
legalize  their  creation  or  continuance.  Their  methods  are  designed  to 
be  auxiliary  to  the  ordinary  modes  of  public  protection. 

Error  to  Quarter  Sessions,  Hudson  County. 

Indictment  for  maintaining  a  public  nuisance. 

The  plaintiffs  in  error  were  convicted  at  the  Hudson  county 
quarter  sessions  upon  the  following  indictment: 

"The  grand  inquest  of  the  state  of  New  Jersey,  in  and  for  the 
body  of  the  county  of  Hudson,  upon  their  respective  oaths,  pre- 
sent that  William  H.  Garrett,  late  of  the  township  of  Kearney, 
in  the  said  county  of  Hudson,  on  the  1st  day  of  January,  in  the 
year  of  our  Lord  1884,  and  on  divers  other  days  and  times  be- 
tween that  day  and  the  day  of  the  taking  of  this  inquisition, 
at  the  .  .  .  township,  in  the  county  aforesaid,  and  within 
the  jurisdiction  of  this  court,  near  to  certain  public  streets  and 
common  highways,  then  and  also  near  to  the  dwelling-house^^ 
of  divers  citizens  of  this  state,  there  situate  and  being,  did  ■  • 
lawfully  and  injudiciously  put  and  place  in  certain  bnild'.,. , 
messuages  and  tenements,  and  in  the  appurtenances  th  j, 
then  and  there  situate,  a  large  quantity  of  filth,  parts  of  bodies  of 
dead  animals,  and  entrails  of  dead  animals,  to  wit,  one  thousand 
barrels  of  filth,  one  thousand  barrels  of  parts  of  bodies  of  dead 
animals, and  one  thousand  barrels  of  entrails  of  dead  animals; 
and  the  said  filth,  parts  of  bodies  of  dead  animals  and  entrails 
of  dead  animals,  then  and  there,  to  wit,  on  the  said  1st  day 
of  January,  in  the  year  of  our  Lord  1884,  and  on  divers  other 
days  and  times  between  that  day  and  the  day  of  the  taking  of 
this  inquisition,  at  the  township  of  Kearney  aforesaid,  unlaw- 
fully and  injuriously  then  and  there  did  and  still  do  keep  and 
suflFer  to  remain,  lie  and  be,  by  means  whereof  divers  noisome, 
noxious  and  unwholesome  smells  and  stenches,  during  all  the 
time  aforesaid,  and  large  quantities  of  noisome,  noxious  and 


as  properly 
>  an  indiii- 
I  was  unob- 

blic  is  con- 
ic nuisance, 
ict  interpre- 

s  of  healtli 
ces,  not  to 
designed  to 


)n  county 

V 

id  for  the 
)aths,  pro- 
Kearney, 
ry,  in  the 
times  be- 
iquisition, 
nd  within 
reets  and 
ng-hoiJse5 

<r,  did   -   • 

bnild'.,.  v 
5  f,h' 

'  bodies  of 
thousand 
}s  of  dead 
animals; 
d  entrails 
I  1st  dav 
ers  other 
taking  of 
d,  unlaw- 
keep  and 
noisome, 
ig  all  the 
:ious  and 


GARRETT  v.  STATK 


471 


unwholesome  smokes  and  vapon  on  the  days  and  times  afore- 
said, then  and  there  were  emitted,  sent  forth  and  issued  from 
the  said  buildings,  messuages,  tenements  and  appurtenances 
thereto,  and  the  air  in  the  neighborhood  thereof,  and  for  a 
great  distance  round  and  about  there,  on  the  days  and  times 
aforesaid,  was  and  still  is  greatly  tilled  and  impregnated  with 
many  noisome,  noxious,  unwholesome  and  offensive  stinks  and 
stenches,  during  all  the  time  aforesaid  has  been  and  still  is 
greatly  corrupted,  and  rendered  unwholesome, —  to  the  great 
damage  and  common  nuisance  of  all  the  good  citizens  of  this 
state  there  inhabiting,  being,  and  residing,  and  going,  return- 
ing and  passing  through  and  along  the  said  public  streets  and 
common  highways  there,  to  the  evil  example  of  all  others  in 
like  case  offending,  contrary  to  the  form  of  the  statute  in  such 
case  made  and  provided,  and  against  the  peace  of  this  state, 
the  government  and  dignity  of  the  same. 

"And  the  grand  inquest  aforesaid,  upon  their  oath  afore- 
said, do  further  present  that  the  said  William  II.  Garrett,  on 
the  1st  day  of  January,  in  the  year  of  our  Lord  1884,  and  on 
divers  other  days  and  times  between  that  day  and  the  day  of 
the  taking  of  this  inquisition,  at  the  township  aforesaid,  in  the 
county  of  Hudson  aforesaid,  and  within  the  jurisdiction  of  this 
court,  near  to  divers  public  streets  and  common  highways,  then 
and  also  near  to  the  dwelling-houses  of  divers  citizens  of  this 
state,  there  situate  and  being,  did  unlawfully  and  injuriously 
erect  and  build,  and  cause  and  procure  to  be  erected  and  built, 
certain  buildings  and  structures;  and  in  said  buildings  and 
structures,  after  the  erection  tiiereof,  did  keep  and  maintain, 
for  the  purpose  of  rendering  and  extracting  and  removing  lard 
and  grease  and  tallow  from  parts  of  the  bodies  of  dead  ani- 
mals, and  from  filth  and  other  stinking  and  unwholesome  sub- 
stances, and  for  other  purposes,  to  the  grand  inquest  aforesaid 
unknown;  and  did  then  and  there  unlawfully  make,  construct 
and  set  up,  and  cause  and  procure  to  be  made,  constructed  and 
set  up,  in  the  said  buildings  and  structures,  divers  boilers,  tanks, 
stoves,  kettles,  cauldrons,  furnaces  and  other  machinery  and 
appurtenances,  to  wit,  ten  cauldrons,  ten  furnaces  and  ten  ma- 
chines and  apparatuses,  for  the  purpose  of  rendering,  extract- 
ing and  removing  lard,  grease  and  tallow  from  parts  of  bodies 
of  di'ad  animals,  and  from  filth  and  other  stinking  and  un- 


mr^^ 


i  .  ■■,; 


472 


AMERICAN  CRIMINAL  REPORTS. 


t  ■ 


li'"- 


LiiS' 


wholesome  substances,  and  for  other  purposes,  to  the  grand 
inquest  aforesaid  unknown;  and  that  the  said  William  II.  Gar- 
rett, on  the  said  1st  day  of  January,  in  the  year  of  our  Lord 
1884,  and  on  divers  other  days  and  times  between  that  day 
and  the  day  of  the  taking  of  this  inquisition,  at  the  township 
of  Kearney  aforesaid,  in  the  county  of  Hudson  aforesaid,  un- 
lawfully and  injuriously  did  render,  extract  and  remove  froiii 
])arts  of  bodies  of  dead  animals,  and  from  filth  and  other  un- 
wholesome and  stinking  substances,  in  and  by  means  of  the 
boilers,  tanks,  stoves,  kettles,  cauldrons,  furnaces  and  other 
machinery  and  apparatus,  so  made,  set  up,  and  placed  in  tlie 
said  buldings  as  aforesaid,  large  quantities  of  lard,  grease  and 
tallow,  to  wit,  two  hundred  tons  of  lard,  two  hundred  tons  of 
grease,  and  two  hundred  tons  of  tallow,  by  means  of  which 
said  premises,  divers  noisome,  noxious  and  unwholesome  smells, 
smokes,  vapors  and  stenches  on  the  days  and  times  aforesaid 
were  sent  forth,  emitted  and  issued  from  the  said  buildings  and 
erections,  so  that  the  air  on  the  several  days  and  times  afore- 
said, at  the  township  of  Kearney  aforesaid,  in  the  county 
aforesaid,  was  thereby  greatly  tilled  and  impregnated  with 
said  smells,  smokes,  vapors  and  stenches,  and  was  rendered  and 
became  and  still  is  corrupted,  offensive,  and  unwholesome  and 
deleterious, —  to  the  great  damage  and  common  nuisance  of 
all  the  good  citizens  of  this  state  then  inhabiting,  being  and 
residing,  and  going,  returning  and  passing  through  and  along 
the  said  public  streets  and  common  highways,  to  tlie  evil  ex- 
ample of  all  others  in  like  case  offending,  contrar\'  to  the  form 
of  the  statute  in  such  case  made  and  provided,  and  against  the 
peace  of  this  state,  the  government  and  dignity  of  the  same. 
"  And  the  grand  inquest  aforesaid,  upon  their  oath  afore- 
said, do  further  present  that  the  said  William  II.  Garrett,  on 
the  1st  day  of  January,  in  the  year  of  our  Lord  1884,  and  on 
divers  other  days  and  times  between  that  day  and  the  day  of 
the  taking  of  this  inquisition,  at  the  township  of  Kearney 
aforesaid,  in  the  county  of  Hudson  aforesaid,  and  within  the 
jurisdiction  of  this  court,  near  to  divers  public  streets  and 
common  highways,  there  and  also  near  to  the  dwelling-houses 
of  divers  citizens  of  this  state,  there  situate  and  being,  unlaw- 
fully and  injuriously,  did  put  and  place,  and  cause  and  procure 
to  be  put  and  placed,  in  certain  buildings  and  other  structures. 


' 


GARRETT  v.  STATE. 


478 


he  grand 
1 II.  Gar. 
our  Lord 
that  day 
township 
ssaid,  un- 
ove  fro  in 
other  un- 
is  of  the 
nd  other 
d  in  the 
'ease  and 
\  tons  of 
of  which 
le  smells, 
aforesaid 
lings  and 
es  afore- 
e  county 
ted  with 
lered  and 
iome  and 
isance  of 
•eing  and 
nd  along 
evil  ex- 
the  form 
gainst  the 
he  same, 
th  afore- 
irrett,  on 
t,  and  on 
le  day  of 
Kearney 
thin  the 
eets  and 
g-houses 
%  unlaw- 
procure 
ructurcs, 


and  in  the  messuages  and  appurtenances  thereto,  lai^ge  cw.n- 
titles  of  filthy  parts  of  bodies  of  dead  animals,  entrails  of  dead 
animals,  and  other  unwholesome  and  stinking  substances,  to 
wit,  one  thousand  barrels  of  filth,  one  thousand  barrels  of  parts 
of  bodies  of  dead  animals,  one  thousand  barrels  of  entrails  of 
dead  animals,  and  one  thousand  barrels  of  other  unwholesome 
and  stinking  substances;  and  then  and  there,  to  wit,  on  the 
1st  day  of  January,  in  the  year  of  our  Lord  188i,  and  on  divers 
other  days  and  times  between  that  day  and  the  day  of  the 
taking  of  this  inquisition,  the  said  filth,  and  the  said  parts  of 
bodies  of  dead  animals,  entrjiils  of  dead  animals,  and  other 
unwholesome  and  stinking  substances,  then  and  there  did  boil, 
burn,  grind  up  and  otherwise  compound  and  prepare,  and  cause 
and  procure  to  be  boiled,  burned,  ground  up,  and  otherwise 
compounded  and  prepared,  for  the  purpose  of  rendering  and 
e.Ktracting  lard,  grease  and  tallow  from  the  same,  and  extract- 
ing and  making  other  articles  and  preparations  to  the  grand 
inquest  aforesaid  unknown,  by  means  whereof  divers  large 
quantities  of  noisome,  noxious  and  unwholesome  smokes,  smells, 
vapors  and  stenches,  on  the  days  and  times  aforesaid,  then  and 
there  were  emitted,  sent  forth  and  issued,  and  the  air  there- 
abouts, on  the  days  and  times  aforesaid,  was  thereby  greatly 
filled  and  impregnated  with  many  noisome,  offensive  and  un- 
wholesome smells,  stenches  and  stinks,  and  has  been,  during 
all  the  time  aforesaid,  corrupted  and  rendered  very  insalubri- 
ous,—  to  the  great  damage  and  common  nuisance  of  all  the 
good  citizens  of  this  state  there  inhabiting,  being  and  residing, 
and  going  and  returning  and  passing  through  and  along  the 
said  public  streets  and  common  highways  there,  to  the  evil 
example  of  all  others  in  like  case  offending,  contrary  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  of  this  state,  the  government  and  dignity  of 
the  same." 

At  the  close  of  the  testimony  the  defendants  below  requested 
the  court  to  charge  as  follows:  "If  the  jury  believe  that  a 
board  of  health  and  vital  statistics,  established  in  the  county 
of  Hudson,  has  enacted  ordinances  on  the  subject  of  carrying 
on  the  business  carried  on  by  the  defendants,  and  under  such 
ordinances  has  licensed  the  defendants  to  carry  on  the  busi- 
ness, this  prevents  an  indictment  for  nuisance  during  the  con- 


mm 


t>\  1 


f  ■; 


!     1,    ':       ■    '      I. 


474 


AMERICAN  CRIMINAL  REPORTS. 


tinuance  of  the  license."  The  court  refused  so  to  charge,  and 
a  bill  of  exceptions  was  sealed.  A  bill  of  exceptions  was  also 
sealed  to  so  much  of  the  charge  of  the  court  as  follows:  "  Tlie 
board  of  health  and  vital  statistics  of  this  county  was  estab- 
lished by  act  of  legislature  in  1874, 1  think,  and  have  had 
supplements  to  their  powers  since  that  year.  This  board  is 
authorized  to  license  the  carrying  on  of  certain  businesses,  and 
to  pass  ordinances  prohibiting  the  carrying  on  of  certain  busi- 
nesses within  the  county  without  a  license.  Apparently,  tiio 
object  of  the  creation  of  that  board  was,  in  some  nieosuro,  to 
protect  the  county  from  nuisances,  by  giving  it  the  control 
and  regulation  of  such  businesses  as  might  be  objectionable, 
if  carried  on  improperly,  or  negligently  and  carelessly.  It 
has  authority  to  impose  a  penalty  for  conducting  certain  busi- 
nesses without  license,  and  also  to  restrict  the  carrying  on  of 
some  kinds  of  businesses.  The  manufacture  of  fertilizers  is  a 
business  within  its  control,  and  it  is  presumed  that  the  board 
would  not  give  a  license,  or  permit  a  given  license  to  continue, 
unless  it  is  satisfied  that  the  business  was  being  properly  con- 
ducted. These  defendants  hold  a  license  from  that  board,  and 
one  would  be  inclmed  to  sav  that  the  board  was  satisfied  when 
that  license  was  granted  that  these  people  were  going  to  carry 
on  their  business  in  a  lawful  way.  The  fact  of  the  license 
being  granted,  however,  does  not  prevent  the  indictment  of 
the  licensees  of  the  board  if  they  create  and  maintain  a  public 
nuisance.  This  the  court  charges  you  as  matter  of  law.  It  is 
charged  in  answer  to  the  request  of  defendant's  counsel." 


Babbitt  d;  Lavjrence  and  Theo.  Ryerson,  for  plaintiffs  in  error. 
Charles  II.  Winjield,  prosecutor  of  the  pleas,  contra. 

Knapp,  J.  The  plaintiffs  in  error  were  convicted,  on  trial 
before  the  quarter  sessions  of  the  county  of  Hudson,  of  the  of- 
fense of  maintaining  a  public  nuisance  in  the  said  county.  Their 
business  was  that  of  extracting  fats  from  dead  animals,  and 
converting  the  rest  into  fertilizers.  It  was  established  by  the 
finding  of  the  jury  that  the  process  of  manufacturing  created 
nauseous  and  offensive  odors  to  an  extent  sufficient  to  create 
public  annoyance.  The  plaintiffs  in  error  had  received  a  license 
froiii  the  board  of  health  and  vital  statistics  of  the  county  of 


^ 


GARRETT  r.  STATE. 


476 


large,  and 
»  was  also 
ws:  "The 
vas  estab- 
liavo  had 
3  board  is 
I  esses,  and 
rtain  busi- 
•ently,  the 
i 00 sure,  to 
10  control 
sctionablo, 
Icssly.  It 
rtain  busi- 
ing  on  of 
lizers  is  a 
the  board 
continue, 
)erly  con- 
)oard,  and 
(led  when 
g  to  carry 
lie  license 
3tment  of 
n  a  public 
iiw.  It  is 
isel." 

s  in  error. 

a. 

I,  on  trial 
of  the  of- 
;y.  Their 
mals,  and 
ed  by  the 
5  created 
to  create 
I  a  license 
county  of 


Hudson  to  carry  on  the  business  of  manufacturing  fertilizers, 
and  thoy  sought  to  vindicate  their  action  in  virtue  of  saoh 
license.  This  line  of  defense  'vs.-  distinctly  presented  in  a  re- 
quest of  the  court  to  charge  that "  if  the  jury  believe  the  board 
of  health  and  vital  statistics  established  in  the  county  of  Hud- 
son has  enacted  ordinances  on  the  subject  of  carrying  on  the 
business  carried  on  by  defendants,  and  under  such  ordinances 
has  licensed  the  defendants  to  carry  on  the  business,  this  pre- 
vents an  indictment  for  nuisance  during  the  continuance  of 
such  license."  This  the  court  declined  to  charge,  and  charged 
that  the  fact  of  the  license  being  granted  did  not  prevent  the 
indictment  of  the  licensees  of  the  board,  if  they  created  and 
maintained  a  public  nuisance.  To  this  refusal  of  tlie  request 
to  charge,  and  to  the  charge  as  made  upon  tliat  point,  ex- 
ceptions \vere  duly  sealed,  and  errors  were  assigned  thereon. 
The  action  of  the  court  thus  excepted  to  presents  the  only 
questions  for  consideration  here. 

The  board  whoso  licenses  the  plaintiffs  in  error  set  up  in 
their  justification  was  created  by  an  act  of  the  legislature  en- 
titled "  An  act  to  provide  for  a  board  of  health  and  vital  sta- 
tistics in  the  county  of  Hudson,  and  to  prevent  the  spreading 
of  disease,"  passed  March  27,  187-i  (P.  L.,  5G9).  It  gave  power 
to  the  board  to  enact  ordinances  in  relation  to  the  public 
health  not  inconsistent  with  the  laws  of  the  state,  and  to  im- 
pose a  penalty  for  their  violation.  By  that  act  power  and 
authority  to  grant  licenses  was  not  conferred ;  but  by  a  public 
act  entitled  "  An  act  concerning  county  boards,  established  for 
the  protection  of  public  health,  and  the  registration  of  vital 
facts  and  statistics,  in  the  counties  of  this  state,"  passed  May  5, 
1884  (P.  L.,  282),  such  boards  were  empowered  to  regulate  and 
control  or  prohibit  the  carrying  on  of  all  trades  and  manufact- 
ures in  said  county  obnoxious  or  offensive  to  the  inhabitants 
of  such  county,  or  any  part  thereof,  and  which  are  attended 
by  noisome  or  injurious  odors  (par.  5,  §  4),  and  to  regulate, 
license  and  control  all  dealers  in  bones,  fat,  and  animal  offal 
or  refuse  whatsoever;  also  all  bone  and  fat  boiling  or  grease- 
making  establishments.  Par.  6,  §  4.  The  plaintiflfs  in  error 
produced  on  the  trial  a  license  from  the  county  board  of  health 
to  manufacture  fertilizers  and  materials  within  Hudson  county, 
on  Hackensack  river,  Kearney  township,  for  one  year  from  the 


476 


AMERICAN  CRIMINAL  REPORTS. 


m 


! 


i): 


■i  -1         ■'  •'.  ■■ 

.1   ■    .                 ■    ' 

1st  day  of  July,  1884,  subject  to  revocation  for  causo.  This 
paper  lays  the  foundation  of  the  matters  objected  to  at  the 
trial. 

The  defendants  invoke  in  their  behalf  a  recognized  principle 
that  a  public  nuisance  must  be  occasioned  by  acts  done  in  vio- 
lation of  law,  and  that  any  business  or  pursuit  wliicli  is  autliur- 
ized  by  law  cannot  be  such  nuisance.  It  is  not  denied  thut 
the  legislature  had  the  power  to  make  lawful,  so  far  as  the 
public  is  concerned,  a  work  or  business  which,  by  the  cuninion 
law,  would  otherwise  be  a  public  nuisance.  An  instance  of 
the  exercise  of  this  power  is  found  in  tlio  schedule  of  powers 
usually  conferred  upon  railroad  companies,  many  of  which, 
in  their  unauthorized  exercise,  would  amount  to  sucii  public 
wrong;  audit  has  not  been  questioned  in  this  case  that  it  is 
competent  for  the  legislature,  through  its  sclcclcil  agents,  to 
determine  when,  where  and  in  what  manner  such  business 
may  be  conducted.  Such  legislation,  however,  being  in  dero- 
gation of  the  common  law,  must  receive  strict  construction, 
and  the  public  injury  from  which  one  holding  such  a  grunt 
would  be  protected  must  be  the  necessary  results  of  tlie  au- 
thorized business,  after  the  exercise  of  proper  cure,  skill  and 
diligence,  employing  careful  servants,  and  using  processes  least 
likely  to  produce  detriment  to  the  public.  If  he  fails  in  any 
of  these,  and  unnecessary  injury  results  to  the  public,  he  be- 
comes liable  to  indictment.     2  Whart.  Crim.  Law,  §  1424. 

In  the  light  of  these  rules,  and  assuming  that  the  licenses 
which  the  plaintiffs  in  error  held  were  lawful  authority  for 
carrying  on  the  business  so  licensed,  is  the  proposition  con- 
tained in  their  requests  to  charge  one  that  is  supportable  in 
law  ?  What  he  asks  the  court  to  declare  to  the  jury  as  a  legal 
rule  for  their  guidance  is  that  the  license  of  this  board  to  carry 
on  a  particular  business  is,  under  any  and  all  circumstances,  a 
protection  against  an  indictment  for  nuisance  growing  out  of 
such  business.  It  left  no  room  for  the  consideration  of  unnec- 
essary, or  even  reckless,  injury  to  the  public  in  the  mode  of 
manufacture.  This  is  the  plain  meaning  of  this  request;  and 
had  it  been  put  to  the  jury  as  asked,  no  matter  how  wilfui  or 
extensive  the  offense  to  the  public  may  have  been,  it  demanded. 
in  virtue  of  the  licenses,  the  acquittal  of  the  plaintiffs  in  error. 
The  proposition  can  il>.d  no  support  or  countenance  in  uu,. 


■ 


OABRETT  V.  STATE. 


47T 


IU80.     This 
to  at  tho 

J  principle 
one  ill  vio- 
J  is  Jiiitlior- 
eniecl  tliat 
'Jir  us  tlie 
0  coiniuoQ 
nstanco  of 
of  powers 
of  which, 
iich  public 

2  that  it  is 
affeiits,  to 
li  business 
g  in  (iero- 
nstruction. 
ch  a  grant 
of  the  au- 
,  skill  and 
3esses  least 
ils  in  any 
'lie,  ho  be- 

1424. 

le  licenses 
liority  for 
sition  con- 
ortable  in 

as  a  legal 
'd  to  carry 
istances,  a 
ing  out  of 

of  unnec- 

3  mode  of 
[Uest;  and 
'  wilful  or 
lemandod. 
s  in  error. 
oe  in  till . 


legal  rule.  But,  on  looking  into  tho  licenses,  is  there  any  au- 
thority given  the  plaintifTs  in  error  to  create  noisome  odors  and 
smells,  and  corrupt  thn  air  with  them,  to  the  inconvenience  of 
the  public?  The  authority  is,  by  the  licenses,  to  manufacture 
fertilizers  and  materials  in  a  certain  locality  for  one  year. 

Is  it  to  be  assumed  that  the  necessary  consequences  of  such 
manufacture  was  to  corrupt  the  air  and  produce  public  annoy- 
ances? Are  wo  to  infer  from  this  grant  that  either  the  legis- 
lature, or  the  board  acting  in  their  behalf,  designed  to  grant 
the  right  under  such  terms  to  create  what  otherwise,  in  law, 
would  be  a  public  offense?  Such  is  not  its  exjjrcssion,  and,  on 
every  recognized  principle  in  tho  interpretation  of  such  grants, 
the  presumption  would  be  against  any  such  intent.  The  ob- 
ject of  the  legislation  constituting  boards  of  health,  and  mark- 
ing out  their  duties,  was  to  prevent  nuisances  in  conservation 
of  the  public  health.  With  this  purpose  as  the  single  object  of 
their  creation,  and  sole  guide  in  action,  it  would  be  novel,  in- 
deec',  to  find  in  such  words  a  license  to  effect  a  public  nuisance. 
In  either  of  these  views  the  judge  was  clearly  right  in  refusing 
to  charge  as  requested. 

I  am  also  of  opinion  that  the  objection  to  the  charge,  as  made, 
is  not  supportable.  It  is  to  be  observed  that  the  charge  given 
which  was  objected  to  was  in  answer  to  the  plaintilf's  request. 
The  judge  had,  in  a  former  part  of  tho  charge,  clearly  defined 
a  public  nuisance.  He  had  instructed  the  jury  that  the  busi- 
ness of  manufacturing  fertilizers  was  a  lawful  business,  when 
the  manner  of  its  conduct  was  not  hurtful  or  offensive.  He 
had  declared  the  law  in  this  case  to  the  jury  in  these  words: 
"When  a  lawful  business  is  conducted  in  an  unlawful  manner, 
so  that  it  is  injurious,  and  interferes  with  the  rights  of  those 
about  him,  then  that  offensive  method  of  conducting  the  busi- 
ness may  be  abated,  and  the  parties  guilty  of  it  may  be  pun- 
ished by  indictment,  if  it  has  become  a  public  nuisance." 
The  plain  deduction  from  what  was  said  in  answer  to  the 
request  is  that  no  inference  was  to  be  drawn  from  the  license 
which  the  plaintiffs  held  that  they  were  authorized  to  inflict 
injury  upon  the  public  by  their  mode  of  conducting  the  busi- 
ness, and  that  they  were  responsible  if  thereby  they  created 
a  nuisance  to  the  public.  If  the  language  used  can  be  under- 
stood as  an  instruction  that  these  licenses  can  in  nowise  impair 


MM 


i 


478 


AMERICAN  CRIMINAL  REPORTS. 


i      A 


•v-f  "■    ' 

;''/■■/■'>'•;■. 


the  common-law  right  of  the  public  to  be  protected  against 
unwholesome  and  noxious  odors,  I  would  still  regard  it  as  a 
correct  exposition  of  the  law. 

The  purpose  which  the  legislature  had  in  view  in  creating 
boards  of  health  was  to  supply  additional  means  to  prevent 
disease  and  discomfort,  such  as  miglit  taise  from  contamination 
of  air,  water  or  food.  These  means  were  designed  to  be  aux- 
iliary to  existing  public  methods  of  protection.  It  was  no 
part  of  that  purpose  to  legalize  or  protect  any  of  the  sources 
of  such  evil.  It  is  a  mistake  to  ascribe  to  this  legislation  a  de- 
sign to  grant  immunity  from  the  ordinary  legal  consequences 
of  creating  or  continuing  a  public  nuisance.  Such  design  is 
not  to  be  found  in  the  causes  which  gave  rise  to  these  enact- 
ments, and  no  words  found  in  the  acts  express  or  suggest  a 
power  in  the  several  boards  of  health  to  license  offenses  against 
the  public  health  and  comfort.  Their  powers,  large  as  they 
are,  are  granted  solely  for  the  repression,  not  the  creation  or 
protection,  of  nuisances.  The  power  to  license  is  given  as  a 
means  of  exercising  restraint  and  control  over  doubtful  pur- 
suits. As  to  those  noxious  in  nature,  or  becoming  so  by  care- 
lessness, the  sole  power  given,  or  designed  to  be  given,  is  to 
abate  and  suppress.  Business  not  unlawful  in  itself  may  be 
brought  under  control  by  safe  and  proper  regulations,  touching 
modes  of  conducting  such  business,  to  avoid  offense  to  tlie 
public.  But  such  boards  have  not  been  endowed  with  power 
to  grant  away  the  public  right  to  pure  and  uncontaminated 
air.  If  it  be  as  the  plaintiff  in  error  contends,  under  a  class 
of  laws  declared  to  be  enacted  for  the  protection  of  the  pub- 
lic healtli,  power  has  been  conferred  upon  these  local  agencies 
broad  enough  to  permit,  through  the  form  of  a  license,  the 
establishment  in  the  midst  of  our  largest  cities  of  the  most 
dangerous  and  intolerable  nuisances.  This  cannot  be  con- 
ceded. 

The  evidence  oflFered  at  the  trial  has  been  brought  here  with 
the  return  to  the  writ.  Wo  cannot  look  into  this,  but  must 
assume  that  the  convictions  rest  upon  competent  and  sufficient 
evidence. 

We  think  there  was  no  error  in  the  refusal  to  charge  as  re- 
quested, or  the  charge  as  given,  and  the  judgment  should  be 
affirmed. 


against 
'(1  it  as  a 

creatitiff 
prevent 
mination 
0  be  aux- 
was  no 
e  sources 
;ion  a  tle- 
equences 
design  is 
se  enact- 
luggest  a 
!s  against 
e  as  they 
eation  or 
iven  as  a 
)tful  pur- 
•  by  care- 
ven,  is  to 
f  may  be 
touciiinjr 
36  to  the 
til  power 
aininated 
er  a  chiss 
the  pub- 
agencies 
ense,  the 
the  most 
i  be  con- 

lere  with 
3Ut  must 
sufficient 


ge  as  re- 
hould  be 


STATE  EX  REL.  CURTIS  v.  CITY  OF  TOPEKA. 


479 


State  ex   eel.  Curtis,  County   Attorney,   etc.,  v.  City  of 

ToPEKA. 

(36  Kan.,  70.) 

Ordinance  :  Prohibiting  dogs  from  running  at  large  —  Constitutional  law  — 
Work  on  roads—  Trial  by  jury, 

1.  Constitutional  la.w  —  Kfeping  and  licensing  op  dogs  —  Statute 

AND  ordinance.  — Statutes  and  ordinances  may  be  passed  regulating, 
restricting,  or  even  prohibiting,  the  running  at  large  of  dogs  in  cities; 
and  this  although  dogs  are  unquestionably  property.  Dogs  in  cities 
may  be  classified,  and  the  owners,  keepers  or  harborers  thereof  may 
be  required  to  register  all  the  dogs  of  one  class,  and  not  the  dogs  of 
another  class,  and  to  pay  a  greater  registration  fee  for  the  registration 
of  tlie  dogs  of  one  class  than  for  the  registration  of  the  dogs  of  another 
class ;  and  such  owners,  keepers  or  harborers  of  dogs  may  also  be  re- 
quired to  put  collars  around  the  necks  of  their  dogs;  and  any  dog 
found  running  at  large  in  a  city  in  violation  of  the  statutes  or  ordi- 
nances may  be  summarily  destroyed.  All  this  is  constitutional  and 
valid,  and  is  "  due  process  of  law,"  and  by  the  same  no  one  is  denied 
"  the  equal  protection  of  the  laws."  • 

2.  Involuntary  servitude  —  Road  work.— Statutes  and  ordinances  re- 

quiring two  days'  work  on  the  streets  of  cities  from  each  male  person 
between  twenty-one  and  forty-five  years  of  age,  or  $3  in  lieu  thereof, 
are  not  unconstitutional  or  void,  altliough  the  two  days'  work  im- 
posed may,  m  one  sense,  be  "  involuiitarj'  servitude,"  ii))posed  upon 
persons  not  convicted  of  crime,  and  although  such  work  or  money 
may  also  be  assessments  or  taxes,  though  not  assessments  or  taxes 
within  the  m(»nning  of  section  1,  article  11,  of  the  state  constitution, 
and  although  vhe  provisions  of  sucii  statutes  and  ordinances  can 
be  enforced  only  by  proceedings  befiire  the  police  judge  without  a 
jury,  and  although  no  a|)pt'al  can  be  taken  from  the  decision  of  the  po- 
lice judge  to  a  court  witii  a  jury,  except  by  entering  into  a  recogni- 
zance, with  security,  conditioned,  among  other  things,  for  thu  payment 
of  any  fine  and  costs  which  may  bo  ad  ju(l;;L'd  against  the  a|)pellant ;  nor 
are  such  statutes  or  ordinances  void  bi^causo  tiiey  i)rovide  for  taking 
private  property  for  public  use  witliout  conii)ensation;  nor  becavise 
the}'  place  an  embargo  upon  the  riglit  to  vote;  nor  because  the  work 
or  the  payment  of  the  money  is  imposed  upon  only  a  class  of  persons, 
and  not  upon  all  persons. 

3.  Trial  by  jury  — City  ordinance.— Section  10  of  the  bill  of  rights  of 

tlie  state  constitution,  which  provides,  among  other  things,  that  "  in 
all  prosecutions  the  accused  shall  be  allowed  ...  to  have  .  .  . 
a  speedy  public  trial,  by  an  impartial  jury,"  .  pplies  only  to  criminal 
prosecutions  for  violations  of  the  laws  of  the  state,  and  does  not 
apply  to  prosecutions  for  violations  of  ordinary  city  ordinances,  which 
have  relation  only  to  the  local  allairs  of  the  city.' 

1  See  note. 


m 


480 


AMERICAN  CRIMINAL  REPORTS. 


'  I' 


c; 


Original  proceedings  in  quo  warranto. 

Action  in  tlie  nature  of  (juo  xoarranio,  brongh*;  in  this  court 
in  the  name  of  the  state  of  Kansas,  to  oust  the  city  of  Topeka 
from  the  exercise  of  certain  powers.  The  provisions  of  the 
constitutions  of  the  United  States,  and  of  the  state  of  Kansas, 
and  of  the  statutes  and  city  ordinances  applicable  to  the  case, 
read  as  follows: 

"  Sec.  1.  Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime,  whereof  the  party  shall  have  boon 
duly  convicted,  shall  exist  within  the  United  States  or  any 
place  subject  to  their  jurisdiction."    Const.  U.  S.,  art.  13,  §  1. 

"Sec.  1.  .  .  .  Nor  shall  any  state  deprive  any  person  of 
life,  liberty  or  property  without  due  process  of  law,  nor  donv 
to  any  person  within  its  jurisdiction  the  equal  protection  of 
the  laws."     Const.  U.  S.,  art.  14,  §  1. 

"  Sec.  5.  The  right  of  trial  by  jury  shall  be  inviolate."  Const. 
Kan.,  Bill  of  Rights,  §  5. 

"Sec.  0.  There  shall  be  no  slavery  in  this  state,  and  no 
involuntary  scM-vitude  except  for  the  punishment  of  crime. 
whereof  the  party  shall  have  been  duly  convicted."  Const. 
Kan.,  Bill  of  Kiglits,  g  0. 

"Sec.  10.  In  all  prosecutions  the  accused  shall  be  allowed 
to  appear  and  dereiid  in  peisoii,  or  by  counsel;  to  demand  the 
nature  and  cause  of  the  accusation  against  him;  to  meet  tli(^ 
witness  face  to  face;  and  to  have  compulsory  process  to  ('()m. 
pel  the  attendance  of  witnesses  in  his  behalf;  and  a  speedy 
public  trial  by  an  impiirtial  jury  of  the  county  or  district  in 
which  the  oll'ense  is  alleged  to  have  been  committed.  Xo  per- 
son shall  b(;  a  witness  against  himself,  or  be  twice  put  in  joop- 
ardv  for  the  same  olfense."     Const.  Kan.,  Bill  of  liights.  vj  Hi. 

"Sec.  1.  Every  .  .  male  person  of  twenty-one  years 
and  upwards  .  .  .  shall  be  deemed  a  qualilied  electoi*.''" 
Const.  Kan.,  art.  5,  §  1. 

"  Sec.  1.  The  legislature  shall  provide  for  a  uniform  and 
equal  rate  of  assessment  and  ta.xation.  .  .  ."  Const.  Kan., 
art.  11,  §  1. 

"Sec.  11.  The  mayor  and  council  .  .  .  shall  have 
power:  .  .  .  Tioeidi/-p'flh.  To  prevent  or  regulate  the  run- 
ning at  large  of  cattle,  hogs,  hor.ses,  mules,  asses,  fowls,  sheep, 
goats,  dogs  and  all  other  animals,  and  to  cause  such  as  may 


STATE  EX  REL.  CURTIS  v.  CITY  OF  TOPEKA. 


481 


his  court 
f  Topeka 
IS  of  the 
f  Kansas, 
the  case, 

e,  except 
ave  been 
5  or  any 
t.  13,  §  1. 
)erson  of 
nor  deny 
action  of 

."  Const. 

,  and  no 
jf   criino. 
Const. 

3  allowed 

niand  the 

meet  the 

s  to  com- 

a  spi.M'dy 

listi'ict  in 

Xo  pcr- 

t  in  jenp- 

•Iits,  ^  lo. 

mo  years 

elector.'" 

orni  and 
1st.  Kan., 

all   have 

!  the  rnn- 

Is,  sheep. 

as  mav 


be  running  at  large  to  be  impounded  and  sold;  to  discharge 
the  costs  and  penalties  provided  for  the  violation  of  such  regu- 
lations, and  the  expense  of  impounding  and  keeping  the  same, 
and  of  such  sale;  and  to  regulate  and  provide  for  the  taxing 
of  owners  and  harborers  of  dogs;  and  to  destroy  dogs  found 
running  at  large  contrary  to  any  ordinance  regulating  the 
same.  .  .  .  7'/<//'/y;/o*</'!'/<.  Each  city  shall  constitute  a  sep- 
arate road  district,  and  the  mayor  and  council  are  author- 
ized and  empowered  to  compel  each  male  resident  of  said  city, 
between  the  ages  of  twenty-one  and  forty-five  years,  to  per- 
form two  days'  labor,  of  ten  hours  each,  on  the  streets,  alleys 
or  avenues  of  said  city,  or.  in  lieu  thereof,  pay  to  the  street 
commissioner  the  sum  of  83.  The  city  clerk  shall  make  out 
and  certify  to  the  street  commissioner  and  city  treasurer, 
on  or  before  the  1st  day  of  April  of  each  year,  duplicate 
lists  of  persons  registered  by  him  as  voters,  between  the  ages 
of  twenty-one  and  forty-five  years,  and  the  street  commissioner 
shall  collect  the  sum  of  !<3  from  each  person  so  certified  by  the 
clerk,  or  compel  such  person  to  perforin  personally  two  days' 
labor  on  the  streets,  alleys  or  avenues  of  said  city.  The 
street  commissioner  shall,  everv  fortv-eight  hours,  turn  over 
to  the  city  treasurer  all  moneys  collected  by  him  duriuir  said 
time,  together  with  a  list  of  the  persons  from  whom  said 
money  was  collected;  and  sliall,  once  each  week,  make  out 
and  deliver  to  the  city  treasurer  a  list  of  all  persons  who  have 
performed  their  two  davs'  labor  on  the  streets.  The  city  treas- 
urer  shall  place  the  money  collected  by  the  street  commis- 
sioner in  the  general  improvement  fund.  All  work  or  labor 
done  under  the  ))rovisions  of  tliis  section  shall  be  under  the 
superintendence  of  the  street  commissioner.  Each  city  shall 
have  power  to  pass  all  ordinances,  and  to  enforce  the  same 
by  fine,  imprisonment,  or  both,  necessary  to  carry  out  fully 
the  provisions  of  this  section."  Laws  of  1SS3,  ch.  34,  §  1, 
subds.  25,  34. 

"Sec.  51.  The  police  judge  shall  have  exclusive  original 
jurisdiction  to  hear  and  determine  all  cases  for  ott'enses  against 
the  ordinances  of  the  city."     Laws  of  1885,  ch.  1)8,  §  1. 

"Sec.  GO.    In  all  cases  before  the  police  judge,  an  appeal 
may  be  taken  by  the  defendant  to  the  district  court  in  and  for 
the  county  in  which  said  city  is  situated ;  but  no  a»)peal  shall  be 
Vol.  VII  — 31 


's.r  r      . 


.  .  ' 

'        ' 

i  '       ' 

' 

;    '  -v.  M  ^  ,\ 

•i 

482 


AMERICAN  CRIMINAL  REPORTS. 


allowed  unless  such  defendant  shall,  within  ten  days  after  such 
conviction,  enter  into  recognizance  with  sufficient  security  to 
be  approved  by  the  judge,  conditioned  for  his  appearance  at 
the  district  court  of  tiie  county,  at  the  next  term  thereof,  to 
answer  the  complaint  against  him,  and  for  the  payment  of  tlie 
fine  and  costs  of  appeal,  if  it  should  be  determined  against  the 
appellant."    Laws  of  188.5,  ch.  98,  §  5. 

"  Sec.  05.  In  all  cases  not  herein  specially  provided  for,  the 
process  and  proceedings  shall  be  governed  by  the  laws  regulat- 
ing proceedings  in  justices'  courts  in  criminal  cases,  except 
that  no  jurv"^  shall  bo  allowed  before  police  judge."  Laws  of 
1885,  ch.  98,  %  7. 

An  ordinance  of  the  city  of  Topeka  (No.  508)  reads  as  fol- 
lows : 

"  Sec.  1.  ^o  person  shall  keep  a  dog  in  the  city  of  Topeka 
after  such  dog  has  reached  the  age  of  six  weeks,  unless  the 
said  person  shall  comply  with  the  following  regulations:  The 
owner,  keeper  or  harborer  of  any  dog  shall  cause  his  or  her 
name,  with  the  name  and  description  of  the  dog,  to  be  regis- 
tered with  the  city  clerk  of  said  city  in  a  book  to  be  kept  by 
him  for  that  purpose,  and  shall  pay  each  year  to  said  city 
clerk,  before  any  dog  is  registered,  a  registration  fee  of  82 
for  each  male  dog,  and  s5  for  each  female  dog;  and  shall  keep 
upon  the  neck  of  each  dog  so  registered  a  suitable  metallic  or 
leather  collar  with  a  metallic  check  or  tag  (to  be  furnished  by 
said  city),  and  the  number  and  year  of  registry  to  be  distinctly 
marked  thereon.  The  city  clerk  shall  keep  a  suitable  book  for 
the  registry  of  dogs,  and  upon  the  payment  to  him  of  the  fee 
aforesaid,  he  shall  register  the  dog  upon  which  such  fee  is  paid. 
Any  person  owning,  keeping  or  harboring  any  dog  in  the  city 
of  Topeka,  in  violation  of  the  provisions  of  this  section,  shall, 
upon  conviction  thereof  in  the  police  court  of.  said  city,  be 
subject  to  a  line  of  not  less  than  §4  nor  more  than  $100,  or 
to  imprisonment  not  exceeding  thirty  days,  or  to  both  such 
fine  and  iraprisonmei-t. 

"  Sec.  2.  That  all  registrations  of  dogs  in  the  city  of  To- 
peka, as  provided  in  section  1  of  this  ordinance,  shall  expire 
on  the  last  day  of  April  in  each  and  every  year  after  the  regis- 
tration of  any  such  dog. 

"  Sec.  3.    It  shall  be  unlawful  for  any  person  to  permit  bis 


ifter  such 
scurity  to 
irancc  at 
lercof,  to 
3nt  of  the 
gainst  the 

mI  for,  the 
s  reguhit- 
3S,  except 
Laws  of 

ids  as  fol- 

)f  Topeka 
inless  the 
ons:  The 
lis  or  her 

be  rogis- 
e  kept  by 

said  city 
fee  of  82 
shall  keep 
iietallic  or 
•nished  by 
distinctly 
3  book  for 
of  the  fee 
fee  is  paid, 
n  the  city 
:ion,  shall, 
d  city,  be 
I  8100,  or 
both  such 

ity  of  To- 

lall  expire 

the  regis- 

permit  bis 


STATE  EX  REL.  CURTIS  v.  CITY  OF  TOPEKA. 


483 


or  her  dog  to  run  at  large  in  any  public  place  in  the  city  of 
Topeka  at  any  time  without  providing  such  dog  with  a  regis- 
tered collar,  as  provided  by  section  I  of  this  ordinance. 

"Sec.  4.  The  marshal  shall  employ  a  suitable  person  or 
persons,  whose  duty  it  shall  be  to  capture  all  dogs  found  run- 
ning at  large  in  any  public  place  in  said  city,  not  having  a 
registered  collar  in  compliance  with  section  1  of  this  ordi. 
nance,  and  place  them  in  a  pound  to  bo  provided  for  that 
purpose;  and  if  the  owner  does  not  appear  in  forty-eight  (48) 
hours  after  such  impounding,  and  claim  and  register  such  dog 
or  dogs,  thfcii  such  persons  so  employed  shall  kill  the  same; 
the  amount  to  be  paid  the  dog-killers  for  their  services  to  bo 
fixed  by  the  city  council,  and  the  number  so  killed  by  him  to 
be  reported  weekly  by  the  city  clerk;  provided,  that  the  pro- 
visions of  this  section  shall  not  apply  to  dogs  not  owned  or 
harbored  in  this  city,  unless  they  be  found  at  large  without 
any  owner  or  master.  It  shall  be  the  duty  of  the  city  clerk  to 
report  and  pay  over  to  the  city  treasurer,  once  in  each  week, 
all  moneys  collected  by  him  for  the  registration  fee,  he  taking 
the  treasurer's  receipt  therefor." 

Sections  1,  2  and  3  of  an  ordinance  of  the  city  of  Topeka, 
Xo.  42G,  reads  as  follows: 

"  Sec.  1.  Every  male  resident  of  the  city  of  Topeka,  be- 
tween the  ages  of  twenty-one  and  forty-five  years,  is  hereby 
required  to  jierform  two  days'  labor,  of  ten  hours  each,  on  the 
streets,  alleys  or  avenues  of  said  city,  or,  in  lieu  thereof,  to 
pay  to  the  street  commissioner  the  sum  of  SI. 50  per  day ;  and 
no  such  person  shall  be  allowed  to  furnish  a  substitute  to  do 
the  work  hereby  required  to  be  done  by  him;  provided,  that 
any  person  working  one  day  with  his  team,  under  the  direc- 
tion of  the  street  commissioner,  shall  be  credited  in  full  for 
two  days'  work. 

"  Sec.  2.  The  street  commissioner  shall  give  notice  to  all 
persons  required  by  this  ordinance  to  perform  work  or  pay 
money,  as  aforesaid,  of  the  time  and  place  he  will  attend  and 
direct  the  work  to  be  performed,  and  he  shall  direct  what  im- 
plement such  persons  shall  bring  with  which  to  perform  such 
work;  and  whenever  it  shall  happen,  in  consequence  of  sick- 
ness, absence  from  home  or  other  sufficient  cause,  that  any 
person  so  notititd  shall  not  be  able  to  perform  such  work  at 


4S4 


AMERICAN  CRIMINAL  REPORTS. 


the  time  he  is  so  notified,  said  street  commissioner  is  hereby 
authorized,  upon  application  being  made  to  him  by  such  poi- 
son, to  permit  such  person  to  perlorni  such  work  at  any  time 
prior  to  the  first  day  of  October  next  ensuing. 

"  Sec.  3.  Any  person  who,  having  been  notified,  shall  re- 
fuse to  do  two  days'  wo:-^:,  or  pay  the  sum  of  §1.50  per  day. 
as  provided  by  this  ordinance,  or  who  shall  appear  at  the 
proper  time  and  place  in  accordance  with  the  notice  of  tlie 
street  commissioner,  and  shall  neglect  or  refuse  to  do  a  reason- 
able day's  work,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall,  upon  conviction  thereof  in  the  police  court  of  said 
city,  be  fined  in  a  sum  not  less  than  five  nor  more  than  ten 
dollars  for  each  offense." 

The  opinion  herein  was  filed  December  9,  1886. 

G.  G.  Clemens,  for  relator. 

Jasper  11.  Moss,  city  attorney,  for  defendant. 


The  opinion  of  the  court  was  delivered  by  Yalkntine,  J. 

This  is  an  action  brought  originally  in  this  court,  in  tlie 
name  of  the  state  of  Kansas,  to  oust  the  city  of  Tojieka  from 
the  alleged  e.xercise  of  various  powers.  Before  submitting  the 
case  to  the  court  the  parties  entered  into  the  following  stipu- 
lation: "It  is  hereby  agreed  that  all  questions  submitted  by 
the  petition  in  this  case  may  be  dismissed  without  prejudice, 
except  the  first  and  second  allegationfi  of  said  petition,  being 
the  alleged  illegal  exercise  of  power  in  requiring  dogs  to  be 
registered  and  to  destroy  dogs  found  running  at  largo  in  said 
city,  and  the  collection  of  a  road  or  poll-tax  from  certain  of 
the  citizens  of  said  city." 

The  petition,  to  the  extent  stipulated,  was  dismissed  in  ac- 
cordance with  the  agreement  of  the  parties.  The  defendant 
answered,  denying  that  it  has  exercised  any  powers  not  con- 
ferred upon  it  by  law,  and  setting  forth  its  ordinances  with 
respect  to  dogs  and  to  road  or  poll-taxes;  and  the  case  was 
submitted  to  the  court  upon  the  petition  and  the  answer. 

The  plaintiff's  first  claim  is  that  the  statutes  and  the  ordi- 
nances regulating  the  running  at  large  of  dogs  are  unconstitu- 
tional and  void;  and  its  counsel  founds  this  claim  principally 
upon  the  proposition  that  dogs  are  property,  and  he  cites 


UH 


STATE  EX  REL.  CURTIS  v.  CITY  OF  TOPEKA. 


485 


s  hereby 
iuch  per- 
any  tiuie 

shall  re- 
pel- (lay. 
r  at  the 
:e  of  the 
a  reason- 
emeanor, 
t  of  said 
than  ten 


INK,  J. 
irt,  in  the 
)eka  from 
litting  the 
ing  stipu- 
mitted  by 
prejudice, 
ion,  being 
)gs  to  be 
go  in  said 
ertain  of 

ed  in  ac- 
lefendant 

not  con- 
nces  with 

case  was 
ver. 

the  ordi- 
[iconstitu- 
rincipally 

he  cites 


many  authorities  to  sustain  this  proposition;  but  the  proposi- 
tion has  seldom,  if  ever,  been  questioned,  and,  so  far  as  this 
case  is  concerned,  it  will  bo  admitted.  Jiut  it  does  not  follow 
that,  because  dogs  are  property,  no  statute  or  ordinance  can 
bo  passed  regulating,  restricting  or  prohibiting  the  running  at 
large  of  dogs,  or  for  their  destruction  in  case  they  are  per- 
mitted to  run  at  large  in  violation  of  law.  Bulls  and  stallions 
are  also  propert}^  and  property  of  a  much  higher  grade  than 
dogs,  and  yet  their  running  at  large  may  be  regulated  or 
prohibited.  Even  venomous  reptiles,  skunks  and  hyenas  may 
be  made  property,  and  yet,  when  they  are  made  property,  it 
does  not  follow  that  their  running  at  large  in  populous  cities 
cannot  be  regulated  or  prohibited.  The  plaintilf  also  cites 
many  authorities  to  the  effect  that  horses,  hog.s,  cattle  and 
other  like  valuable  property  cannot  be  destroyed  or  confis- 
cated without  a  judicial  investigation  and  determination,  upon 
proper  and  legal  notice  to  the  owner*  but  it  does  not  follow 
from  these  authorities  that  the  running  at  large  of  dogs  may 
not  be  regulated,  restricted  or  prohibited,  or  that  dogs  may 
not  be  killed  if  found  running  at  large  in  violation  of  law;  nor 
does  it  follow  from  these  authorities  that  the  killing  of  dogs 
found  running  at  large  in  violation  of  law  is  not  "due  process 
of  law,"  under  both  the  state  and  the  federal  constitutions. 
As  we  have  already  stated,  property  in  dogs  is  not  of  that 
high  character  that  property  in  many  other  things  is.  City  of 
Jiuhpetuloice  v.  Ti'oiwalle,  15  Kan.,  73;  Woolf  v.  Chalker,  31 
Conn.,  121,  127;  Blair  v.  Forehand,  100  Mass.,  1-10;  Ex  parte 
Cooper,  3  Tex.  Ct.  of  App.,  -ISO;  Leach  v.  Elioood,  3  Bradw., 
457;  4  131.  Comm.,  23G.  Mr.  Blackstone,  in  his  Commentaries, 
speaks  of  property  in  dogs  as  a  "  base  property ; "  and  dogs 
were  not  the  subject  of  larceny  at  common  law,  and  they  are 
seldom  assessed  for  taxation,  and  seldom  have  a  market  value. 
It  is  also  claimed  that  the  registration  fee  reijuired  to  be 
paid  upon  the  registration  of  each  dog  is  a  tax,  and  that  it  is 
not  levied  at  a  "uniform  and  equal  rate,"  as  required  by  sec- 
tion 1,  article  11,  of  the  constitution.  AVe  suppose  it  will  be 
admitted  that  said  registration  fee  is  a  tax;  but  clearly  it  is 
not  that  kinti  of  tax  contemplated  in  the  aforesaid  provision 
of  the  constitution.  It  is  a  tax  levied  for  the  purpose  of  regu- 
lation and  restriction,  and  is  not  a  tax  levied  merely  for  the 


486 


AMERICAN  CRIMINAL  REPORTS. 


K 

I  ■ 

mlm' 

i^M': 

:V 

m 


\i 


¥i  -l 


m 


m 


'.ofh*- 


J; 


■  f: 


purpose  of  raising  revenue,  as  that  provision  contemplates. 
Tiiat  it  is  not  unconstitutional  because  it  is  a  tax  we  tliink 
follows  from  the  following  decisions:  Ctfi/  (ff  Newton  v.  Alchi- 
son,  31  Kan.,  151, and  the  numerous  cases  there  cited;  Tallim 
V.  City  of  SciJan,  31  id.,  1G5,  and  cases  there  cited;  City  of 
Cherol-ee  v.  Fox,  34  id.,  10;  Ex  parte  Cooper,  3  Tex.  Ct.  of  App., 
489;  Mitchell  v.  Williams,  27  Ind.,  62;  Tenney  v.  Len?.,  JO 
Wis.,  581);  Van  Horn  v.  People,  40  Mich.,  183;  Ilemlrie  v. 
Kalthof,  48  id.,  300;  Com,,  v.  MarJcham,  7  Bush,  480;  Mowen/ 
V.  Salisbury,  83  K  C,  175;  Jlolst  v.  Hoc,  30  Ohio  St.,  340; 
Colev.  Hall,  103  III.,  30. 

It  is  also  claimed  that  all  dogs  are  not  taxed  alike,  and, 
therefore,  that  the  tax  is  invalid.  The  tax  is  ""  u  registration 
fee  of  $2  for  each  male  dog,  and  $5  for  each  fen);ile  dog," 
where  the  dogs  are  more  than  six  weeks  old,  and  no  fee  whore 
the  dogs  are  less  than  six  weok.'^  old.  Now,  as  before  stated, 
this  tax  is  imposed  for  regulation  and  restriction,  and  not 
merely  for  revenue,  and  therefore,  under  the  authorities  above 
cited,  wo  think  it-is  valid. 

The  plaintitf  also  claims  that  the  statute  and  the  city  ordi- 
nance providing  for  the  summary  destruction  of  dogs  found 
running  at  large  in  violation  of  the  ordinance  are  unconstitu- 
tional and  void,  and  it  cites  as  authority  many  cases,  only  one 
of  which,  however,  as  we  think,  can  fairly  be  said  tv)  sustain 
its  view,  and  this  authority  is  not  entirely  parallel  with  tiie 
present  case.  This  authority  is  the  case  of  Mayor  of  Wa^h- 
iiHjton  V.  Mel(jfi,  1  MacArthur  (D.  C),  53.  On  the  other  hand, 
we  have  numerous  autliorities  which  assert  the  opposite  doc- 
trine, and  fully  sustain  the  validity  of  the  statute  and  the  or- 
dinance put  in  question  in  the  present  case.  These  authorities 
are  the  last  nine  cases  previousl}'  cited,  and  also  the  following 
cases:  City  of  Jnihpendence  v.  J/'o?a'aZ/<?,  15  Kan.,  70;  Woolf 
V.  Chalker,  31  Conn.,  121;  Blair  v.  Forehand,  100  Mass.,  130; 
Com.  V.  J*almer,  134  id.,  537;  llaller  v.  Sheridan,  24  Ind.,  494; 
State  V.  Cornnall,  27  id.,  120;  Loioell  v.  Galhriyht,  97  id.,  313; 
Morey  v.  Brown,  42  N.  II.,  379;  Leach  v.  Elwnod,  3  Bradw., 
453.  See,  also,  Bowers  v.  Fitzrandolph,  Add.  (Pa.),  215;  Kimj 
v.  Kline,  0  Pa.  St.,  318;  Marshall  v.  Blackshire,  44  Iowa,  475. 

Under  the  almost  unbroken  current  of  authoritv,  we  think 
that  statutes  and  ordinances  may  be  passed  regulating,  restrict- 


STATE  EX  llEL.  CURTIS  r.  CITY  OF  TOPEKA. 


487 


;m  plates, 
ve  think 

V.  A  it'll  i- 

ClUj  of 
of  A|)|)., 
Lenz,  JO 
utdi'le  V. 

Mau'c/'i/ 
St.,  840; 

ko,  and, 

♦  ' 

fistration 
ilo  dotr" 
"oc  wliere 
•0  stilted, 
and  not 
ies  above 

city  ordi- 
gs  found 
leonStitu- 
only  one 
I)  sustain 
with  tiio 
of  ]Va.s/t- 
icr  liand, 
jsite  doc- 
d  the  or- 
Jllioritics 
ollo\vin<^' 
S  Woo/f 
iss.,  i;30; 
nd.,  494; 

id.,  3l;3; 

Eradw., 
5;  Junfj 
)\va,  475. 
ve  think- 

restrict- 


ing, or  even  prohibiting,  the  running  at  large  of  dogs  in  cities, 
and  this  although  dogs  are  unquestionably  property;  tliat  the 
owners,  keepers  or  harborers  of  dogs  in  cities  may  be  required 
to  register  the  sunie,  and  to  pay  a  registration  fee  therefor, 
although  this  fee  may,  in  one  sense,  be  a  tax,  tliough  not  a 
tax  within  the  meaning  of  section  1,  article  11,  of  the  state 
constitution;  that  dogs  in  cities  may  be  classilied,  and  the 
owners,  keepers  or  harborers  thereof  may  be  required  to  regis- 
ter all  the  dogs  of  one  class,  and  not  the  dogs  of  anotiier  class, 
and  to  pay  a  greater  registration  fee  for  the  registration  of  the 
dogs  of  one  class  than  for  the  registration  of  the  dogs  of  an- 
other class,  and  such  owne-.'s,  keepers  or  harborers  of  dogs 
ma^^  also  be  required  to  put  collars  around  tlie  necks  of  their 
dogs;  and  that  any  dog  found  running  at  large  in  a  city,  in 
violation  of  the  statutes  or  ordinances,  may  be  summarily  de- 
stroyed; and  that  all  this  is  constitutional  and  valid,  and  is 
"due  process  of  law;"  and  that  by  the  same  no  one  is  denied 
'•  the  equal  protection  of  the  laws." 

The  plaintirt'  also  claims  that  the  statutes  and  ordinances 
with  reference  to  road  or  poll-taxes  ai'e  unconstitutional  and 
void.  It  is  claimed  that  they  are  void  for  various  reasons: 
jFlrst,  because  tliey  impose  "involuntary  servitude"  upon  per- 
sons not  convicted  of  crime;  second,  because  they  provide  for 
taking  private  property  for  public  use  without  compensation; 
third,  because  they  place  an  embargo  upon  the  riglit  to  vote; 
fom'th,  because  their  provisions  are  such  that  they  can  be  en- 
forced only  by  a  proceeding  before  the  poljce  judge,  without 
a  jury,  and  that  no  appeal  can  be  taken  from  the  decision  of 
the  police  judge  to  a  court  with  a  jury,  except  by  entering  into 
a  recognizance  with  security,  conditioned,  among  otl:er  things, 
for  the  payment  of  any  fine  and  costs  which  might  be  adjudged 
against  the  appellant. 

Of  course,  work  upon  the  roads  or  streets,  as  provided  for 
by  these  statutes  and  ordinances,  is  "  involuntary  servitude; " 
but  it  is  not  that  kind  of  involuntary  servitude  which  comes 
within  the  interdiction  of  section  G  of  the  bill  of  rights  of  the 
Kansas  constitution,  or  section  1,  article  18,  of  the  United 
States  constitution.  It  is  like  service  or  "  involuntary  servi- 
tude" on  juries,  or  in  the  militia,  or  in  the  army,  or  in  remov- 
ing snow  or  ice  from  sidewalks,  gutters,  etc.;  and  is  not  that 


4S8 


AMERICAN  CRIMINAL  REPORTS. 


>^ 


II  f<\ 


)i 


kind  of  "  involuntary  servitude ''  which  is  akin  to  slavery,  as  tlio 
intenlicted  involuntary  servitude  mentioned  in  the  Ftate  ami 
federal  constitutions  is.  Labor  is  also  property,  but  it  is  not 
taken  under  these  statutes  or  ordinances  without  compensation. 
Good  public  roads  or  streets  are  a  suilicient  compensation  for 
the  hibor  required  to  bo  performed  by  each  individual  in  keep- 
ing them  in  good  order  and  condition;  and  this  labor,  or  the 
money  paid  in  lieu  thereof,  is  imposed  and  taken  as  an  assess- 
ment or  a  tax,  although  it  is  not  that  kind  of  assessment  or 
tax  mentioned  in  section  1,  article  11,  of  the  Kansas  constitu- 
tion; and,  so  far  as  compensation  is  concerned,  the  compensa- 
tion in  this  case  is  just  as  good  as  the  compensation  is  in  any 
case  where  persons  are  taxed.  And  although  the  assessment 
or  tax  in  this  case  is  levied  and  imposed  only  upon  a  class  of 
persons,  to  wit,  males  between  twenty-one  and  forty-live  years 
of  age,  still  it  is  valid. 

^Neither  are  the  provisions  of  the  foregoing  statutes  an  em- 
bargo upon  the  right  to  vote,  nor  are  they  in  contravention  of 
those  provisions  of  the  constitution  with  regard  to  the  right  of 
trial  bv  iurv.  All  these  questions,  and  others,  were  involved 
in  the  case  of  In  re  Dasslcr,  i5.")  Kan.,  078;  and  upon  all  these 
questions  tiie  decision  of  this  court  in  that  case  was  against 
the  claims  made  by  the  plaintiiT  in  this  case.  Wo  shall  follow 
that  decision.  We  shall  add  a  few  words,  however,  with  re- 
gard to  the  question  of  the  right  of  trial  by  jury.  The  con- 
stitution provides  that  "the  right  of  ti'ial  b}'  jury  shall-  be 
inviolate."  Const,  Kan.,  Uili  of  liights,  ^  5.  This  means  that 
the  right  of  trial  by  jury  shall  be  and  remain  as  ample  and 
complete  as  it  was  at  the  time  wiion  the  constitution  was 
adojjted.  But  »t  that  time  parties  who  were  charged  with 
violating  city  ordinances,  or  with  a  failure  to  work  on  tlie 
streets  of  cities,  were  not  entitled  to  a  trial  by  jury.  Hence 
this  provision  of  the  constitution  has  no  application  to  this 
case. 

But  it  is  also  claimed  that  under  section  10  of  the  bill  of 
rights  of  the  constitution  "  in  all  prosecutions  the  accused 
shall  be  allowed  ...  to  have  ...  a  speedy  public 
trial,  by  an  impartial  jury.  .  .  ."  ,  ^ow,  this  claim  is  liter- 
ally true;  and  yet  it  can  hardly  be  supposed,  and  indeed  it  has 
never  been  supposed,  that  by  this  provision  of  the  constitution 


y,as  tlio 
tiite  and 

it  is  noi 
ensatioii. 
ation  for 

in  koep- 
)!*,  or  the 
in  jissess- 
siuciit  or 
constitu- 
Jiupcnsa- 
is  in  any 
sossnient 
I  class  of 
ivc  years 

s  an  em- 
LMition  of 
ri<jlifc  of 
involved 
all  tiiesu 
5  afjainst 
ill  follow 
with  re- 
riio  con- 
shali-  he 
ans  that 
iplo  und 
ion  was 
fed  with 
on  the 
Hence 
to  this 

Q  bill  of 
accused 
y  public 
is  liter- 
id  it  has 
ititution 


STATE  EX  REL.  CURTIS  v.  CITY  OF  TOPEKA. 


4  SO 


all  tho  summary  remedies  heretofore  given  or  exercisoil.  in  un- 
important matters,  and  before  inferior  courts,  tribunals  or 
iiia<,'istrates,  has  been  utterly  obliterated  and  destroyed,  and  in 
their  stead  tho  more  tardy,  cumbrous  and  expensive  remedy 
of  trial  by  jury  substituted.  It  is  true  that  tho  words  "all 
prosecutions"  are  used  in  this  section,  and  yet  wo  can  hardly 
suppose  that  even  the  plaintiff  will  claim  that  tho  words  "all 
prosecutions,"  as  above  used,  mean  all  kinds  of  prosecutions  — 
civil,  criminal  and  military.  Other  words  are  also  used  in 
said  section  which  tend  to  show  that  all  kinds  of  prosecutions 
were  not  intended.  For  instance,  the  words  "accused,"  "ac- 
cusation," "  offense,"  and  "  defend,"  are  also  used,  and  onft/  ao- 
fuseil  (lifendants  are  given  the  right  to  "  a  s|)eedy  public  trial, 
by  an  impartial  jury;"  and  this  jury  must  be  a  "jury  of  the 
county  ui'  district  in  which  the  i>f'enfie  is  alleged  to  have  been 
committed."  Cities,  towns  and  villages  are  not  mentioned  in 
this  section.  Xow,  if  prosecutions  for  violations  of  city  ordi- 
nances are  to  be  tried  only  before  a  jury,  at  tho  election  of  tho 
defendant,  why  should  they  not  be  tried  otdij  hcfore  a  jury  of 
the  cityf  Why  should  city  courts  go  beyond  the  city  for  ju- 
rors? And  wo  might  further  say  that,  at  common  law,  juries 
are  always  composed  of  twelve  men;  and  such  juries  have 
seldom  been  allowed  in  courts  of  special,  inferior  or  limited 
jurisdiction, —  such  as  police  courts,  justices  of  the  peace  or 
probate  courts,  or  in  courts  of  ec|uity,  or  in  reviewing  courts. 
We  suppose  that  the  plaintiff  will  not  claim  that  juries  are  re- 
quired in  idl  prosecutions,  but  only  in  all  criminal  or  quasi 
criminal  prosecutions.  But  will  tho  plaintiff  claim  that  juries 
are  requircid  before  examining  magistrates  or  in  courts-martial, 
or  in  cases  of  impeachment  before  the  legislature?  AVe  sup- 
pose not;  but  the  plaintiff"  will  undoubtedly  claim  that  juries 
are  required  in  all  prosecutions  before  police  courts  or  police 
magistrates  for  violations  of  citv  ordinances;  for  such  is  virtu- 
ally  the  claim  made  in  this  case.  IJut  we  do  not  think  that 
even  this  claim  of  the  [)laintifr  is  tenable.  In  our  opinion  the 
words  "  all  prosecutions,"  as  used  in  section  10  of  the  bill  of 
i-ights,  were  intended  to  mean  only  all  criminal  prosecutions 
for  violations  of  the  laws  of  tho  state,  and  were  not  intended 
to  mean  or  to  include  prosecutions  for  the  violation  of  ordinary 


^m' 


■u'PX 


400 


AMERICAN  CRIMINAL  REPORTS. 


city  ordinances  which  have  relation  only  to  the  local  affairs  of 
the  city. 

Tiiis  is  the  view  that  ahnost  every  court  of  the  TInito<l  Statos 
which  has  had  the  subject  under  consideration  lias  talcen  con- 
cerning siinihir  provisions  in  the  cun^stitutions  of  their  states. 
It  is  well  settled  that  one  and  the  same  act,  committed  by  a 
l)erson  in  a  city,  may  constitute  twooirensos, —  one  agairjst  tlio 
hiws  of  the  state,  and  the  other  against  tiio  ordinances  of  the 
city;  and  both  may  bo  |)rosecuted  against  the  oll'ender.  1 
Dill.  Mun.  Corp.,  g  'MS  et  seij.,  and  note,  and  the  numerous 
cases  tiiero  cited. 

Now,  this  could  not  be  the  case  if  tlio  language  of  said  sec- 
tion 10  was  intended  to  include  ])rosecuiions  for  violations  of 
city  ordinances  as  well  as  for  violations  of  tlio  laws  of  the 
state;  for  that  same  section  not  only  provides  that  "in  all 
prosecutions  the  accused  shall  be  allowed  ...  to  have 
.  .  .  a  speedy  public  trial,  by  a  inipartial  jury,"  .  .  . 
but  it  also  provides  that  the  accused  shall  not  "  be  twice  put  in 
jeopard}'  for  the  same  oll'ense."  Hence,  if  a  prosecution  for  the 
violation  of  a  city  ordinance  is  as  uuich  a  prosecution  within 
the  meaning  of  said  section  10  as  a  prosecution  for  the  viola- 
tion of  a  state  law,  and  if  both  kinds  of  prosecutions  can  be 
had  for  one  and  the  same  act,  then  the  accused  would  as  ef- 
fectually "  be  twice  put  in  jeopardy  for  the  same  offense"  as 
if  both  prosecutions  were  had  strictly  and  exclusively  uniicr 
the  laws  of  the  state.  As  lending  su])port  to  the  proposition 
that  the  words  "all  prosecutions,"  used  in  section  10  of  the 
bill  of  rights,  were  not  intended  to  include  i)r()secutions  lor 
violations  of  city  ordinances,  but  were  intended  to  include  only 
prosecutions  for  violations  of  the  laws  of  the  state,  wo  would 
refer  to  the  following  cases:  Dyers  v.  The  Cdin.,  42  Pa.  St.,  .SO; 
Burroni/h^'s  Appeal,  52  id.,  374;  Shufer  v.  JIunwnr,  17  M<\. 
331;  WilUamH  v.  Augusta,  4  Ga.,  509;  Flot/d  v.  Eatonton,  14 
id.,  354;  State  v.  Gutlerres,  15  La.  Ann.,  190;  PuvsM  v.  Por- 
ter, 20  id.,  325;  McGear  v.  Woodruff,  33  K  J.  Law,  213;  Ilouie 
V.  The  Treasurer,  37  N.  J.  Law.  145;  Tri<jaU>i  v.  Memj/his,  G 
Coldw.,  382.  See,  also,  1  Dill.  Mun.  Corp.,  g  408  et  seq.  and 
§  482,  and  notes,  and  cases  there  cited.  Also,  in  this  connec- 
tion, see  the  following  cases:  Murphy  v.  People,  2  Co  wen,  815; 


1 


'm:.m 


STATE  EX  REL.  CURTIS  v,  CITY  OF  TOPEKA. 


491 


ffuirs  of 

'1  Statos 
ctMi  con- 

•    stilt  CS. 
toil  by  ii 

inst  tlio 

's  of  tho 

<lci'.     1 

IIUOI'OllS 


JJon'nf/  V.  Wiinniris,  17  Ala.,  510;  7;V.s'  v.  The  State,  20  id. 
1(15;  Work  v.  The  State,  2  Ohio  St.,  290;  Ehhihj  v.Fllleij,  43 
I'a.  St.,  384;  lihines  v.  Clarl;  51  id.,  00;  Johnson  v.  Bo  rata  if, 
10  N.  J.  Law,  1;  The  State  v.  Conliii,  27  Vt.,  31 8;  7m  re  JJomjh- 
rrfi/,  27  id.,  325;  Vanoa  v.  City  of  AuyiiHta,  38  Ga.,  542;  Frost 
V.  Com.,  9  15.  Moiv,  3(;2;  The  State  v.  McCortj,  2  Waclvf.,  5; 
Diiffij  V.  The  People,  0  Hill,  75;  Sill  v.  Conuntj,  15  N.  Y.,  297; 
The  People  v.  Painell,  50  id.,  274;  The  People  v.  Fiisher,  20 
IJarb.,  052;  Pt'escott  v.  The  State,  19  Ohio  St.,  184. 

Tliero  are  a  few  cases  to  be  found  in  tlie  reports  which 
liold  that  constitutional  provisions  similar  to  those  contained 
in  section  10  of  the  bill  of  rights  of  the  Kansas  constitution 
a|)i)ly  to  such  olFcnses  against  the  laws  of  the  state  as  existed 
at  tho  time  of  tho  adoption  of  the  constitution,  and  not  to  sub- 
so(|Ut.'utly  created  olfensos.  AVhether  these  cases  are  correct 
expositions  of  tho  law  or  not  it  is  not  necessary  for  us  now  to 
determine,  J>ut,  for  tho  purposes  of  the  case,  we  shall  assume 
that  the  provisions  of  said  section  10  apply  to  all  prosecutions 
for  oll'enses  against  the  laws  of  the  state,  without  reference  to 
whether  such  otfonses,  or  similar  ones,  were  in  existence  at  the 
time  of  tho  adoption  of  the  constitution,  or  were  subsequently 
created;  also,  for  the  purposes  of  this  case,  we  shall  assume 
that  if  tho  state  should  permit  cities  to  j)ass  ordinances  at- 
tempting to  regulate  matters  not  coming  within  the  legitimate 
scope  or  purpose  of  municipal  regulation,  but  coming  more 
properly  within  the  scope  and  object  of  state  regulation,  a 
person  accused  of  violating  such  ordinances  would  have  tho 
right  to  demand  a  jury  trial;  for  in  such  a  ease  tlie  prosecu- 
tions would,  to  all  intents  and  purposes,  be  state  ])rosocutions, 
and  not  merely  city  prosecutions,  and  the  state  could  not,  by 
indirection,  do  what  it  could  not  do  directly.  In  other  words, 
olfenses  against  the  public  in  general  must  be  prosecuted  for 
the  public  in  general,  and  with  a  jury,  if  the  defendant  de- 
ntand  it,  while  olfenses  against  the  ordinances  of  a  city,  regu- 
lating only  city  affairs,  may  be  prosecuted  for  the  city,  and 
without  a  jury. 

Now  this  case  belongs  to  tho  latter  class  of  cases.  Streets 
within  a  city  or  other  strictly  municipal  corporation  are  pe- 
culiarly within  the  management  and  control  of  such  corpora- 
tion.   They  are  graded,  paved,  curbed,  guttered  and  kept  in 


492 


AMERICAN  CRIMINAL  REPORTS. 


I,,  'fi  *> 

I     tm  •■> :: 


i'  ?  i 


ijiii. 


repair  by  the  corporation,  and  not  by  the  general  public;  and 
if  they  are  permitted  to  become  unsafe  or  dangerous,  and  in- 
jury to  individuals  results  thereby,  the  corpoiation  itself  is 
liable;  and  this  kind  of  liability  is  peculiar  to  municipal  cor- 
porations. Neither  the  state,  nor  any  county,  township  or 
road  district,  is  ever  liable  for  injuries  resulting  from  defective 
highways.  <^riiy  uumicipal  corporations  proper  are  subject  to 
such  a  liability,  and  therefore  such  corpoi'ations  should  have 
the  fullest  and  most  ample  power  to  keep  their  streets  in  good 
order  and  in  a  safe  condition;  and  fortius  purpose  tliey  should 
have  am[)le  power  to  tax  the  people  residing  or  holding  prop- 
erty within  the  cor|)orate  limits,  and  to  enforce  the  collection 
of  such  taxes.     We  think  they  have  such  power. 

We  do  not  think  that  the  plaintiff  is  entitled  to  any  relief 
in  this  case,  and  therefore  its  petition  will  be  denied. 

All  the  justices  concurring. 

Note,—  Right  of  jury  trial. —  That  the  accused  cannot  be  denied  the  right 
of  trial  by  jury  whenever  and  wherever  accused,  sue  note  to  Ex  parte 
U'ootcn,  0  Am.  Cr.  U.,  181. 

Disorderly  honneii  —Power  to  regulate  and  suppress. —  In  Rogers  v.  People. 
9 Col.,  450,  the  question  presented  was:  Does  tiie  statute  of  18>'j.  which  con- 
fers upon  tlie  city  council  of  Denver  power,  by  ordinance,  "exclusively 
to  prohibit  and  suppress  .  .  .  dance-houses,  bawdy-houses,  disorderly 
houses,  houses  of  ill-fame  or  assignation,  or  any  place  for  the  practice  of  lewd- 
ness or  fornication  within  said  cilj',"  have  the  elfect  of  suspending,  within 
the  corporate  limits  of  the  city,  the  operation,  ijro  iuuto,  of  section  b'.iQ  of  the 
General  Statutes,  which  reads  as  follows:  "  If  any  person  shall  be  guilty  of 
open  lewdness,  or  other  notorious  acts  of  public  indecencj',  tending  to  de- 
bauch the  public  morals,  or  shall  keep  open  any  tippling  or  gaming-house 
on  the  Sabbath  day  or  night,  or  shall  maintain  or  keep  a  lewd  house  or 
place  for  the  practice  of  fornication,  or  shall  keep  a  conunon,  ill-governed 
and  disorderly  house,  to  the  encouragement  of  idleness,  gaming,  drinking, 
fornication,  or  other  misbehavior,  <'very  siich  person  shall,  on  conviction, 
be  fined  not  exceeding  .$100,  or  imprisoned  in  the  county  jail  not  exceeding 
six  months?" 

Passing  upon  this  question  the  court  say:  'This  general  provision  was 
adopted  upwards  of  twenty  years  ago,  and  has  never  been  repealed.  The 
special  act  above  mentioned  is  the  later  of  the  two.  Therefore,  if  both  are 
valid,  and  if  both  cannot  be  given  full  force  and  effect,  the  former  must 
give  way  to  the  extent  of  the  conllict  existing  between  them.     .     .     . 

"  A  house  of  prostitution  is  a  constant  menace  to  the  puldic  peace  and 
good  order  of  the  conununity  in  which  it  exists.  It  is  u  nuisance,  and  its 
keeping  a  misdemeanor,  at  common  law.  Its  suppression  and  punishment 
are  proper  subjects  of  police  regulation.    In  cMie  form  or  another  the  au- 


^ 


STATE  EX  REL,  CURTIS  v.  CITY  OF  TOPEKA. 


403 


>lic;  and 

and  in- 

itself  is 

pal  coi"- 

nshij)  or 

efoctivo 
t*>ject  to 
M  havo 
in  good 
should 


^^ 


l)l-0|). 

ullcctiou 
ly  relief 


1  the  right 
£-e  parte 

V.  People. 
I'liicli  01)11- 
solusivol}- 
lisordorly 
oof  lowil- 
)^,  witliiii 
HiWofthe 

Suilty  of 
"K  to  do- 

illg-llOUHf 

liouso  or 
governed 
Jrinking, 
nviction. 
xceediiig 

sion  was 
Dd.  TJio 
Ixith  arc 
er  iiiiist 

• 

(ace  and 

,  and  its 

JHlnnciit 

llie  au- 


thority to  prohibit  and  suppress  is  very  generally  given  to  cities  and  towns, 
and  (juite  as  generally  exercised  by  the.n.  It  is  true,  the  general  policy  of 
our  statutes  and  of  the  common  law  is  to  wholly  inhibit  these  places,  and 
it  is  also  true  that  the  people  of  the  entire  state  are,  to  some  extent,  inter- 
ested in  the  suppression  thereof.  But,  in  the  first  jilace,  the  statute  gives 
the  council  no  authority  to  license  or  regulate  — i\wy  can  only  prohibit  and 
sui)press  —  the  evil;  and,  secondly,  the  existence  of  such  houses  within  the 
corporate  limits  is  a  matter  that  peculiarly  concerns  the  citizL-ns  of  Denvei. 
They,  more  than  the  people  elsewhere,  are  brought  into  contact  therewith, 
and  HulTer  through  the  vicious  influences  emanating  therefrom.  Moreover, 
the  subject  is  one  with  which,  from  its  very  nature,  the  local  authorities 
can  more  intelligently  and  effectively  deal  than  can  the  general  assembly. 
It  is  a  matter  fairly  pertaining  to  the  province  of  '  local  self-government.' 
It  was  competent  for  the  legislature  to  gi%e  the  city  council  legislative 
control.  Cooley,  Const.  Lim.,  228,  and  note.  See,  also,  p.  2(il.  And  we 
discover  no  sufficient  reason  for  holding  that  this  authority  shall  not  be 
made  exclusive  and  plenary,  controlled  only  by  such  express  constitutional 
inhibitions  or  mandates  as  may  be  found  applicable.  State  v.  Clarke,  Hi 
Mo.,  17;  State  V.  De  Bar,  58  Mo.,  395;  Davis  v.  State,  2  Tex.  App.,  425; 
Berry  v.  People,  3G  III.,  425;  State  v.  Gordon,  00  Mo.,  383;  Hetzerv.  People, 
4  Col.,  45:  Hnffsmith  v.  People,  8  Col.,  175;  Seibold  v.  People,  80  111.,  33, 
and  cases. 

"  In  Berry  v.  People  and  State  v,  Gordon,  above  cited,  the  offenses  charged 
were  ganibling  and  disturbance  of  the  peace,  respectively.  In  the  cases  of 
Iletzcr,  Hnffsmith  and  Seibold  v.  People,  the  prosecutions  related  to  tippling- 
houses,  or  the  vending  of  intoxicating  li(]uors.  But,  so  far  as  the  delega- 
tion of  exclusive  legislative  control  is  concerned,  we  think  these  decisions 
may  fairly  be  cited  in  support  of  our  conclusion  in  the  case  at  bar. 

"  It  is  insisted  that  the  power  '  to  prohibit  and  suppress '  does  not  include 
the  jKiwcr  to  provide  for  punishment.  This  proposition  is  not  tenable.  The 
right  to  pass  ordinances  usually  carries  with  it  '  the  incidental  right  to  en- 
force them  by  reasonable  jiecuniary  penalties.'  1  Dill.  Mun.  Corp.,  «5§  338, 
370,  and  note  1 ;  Bish.  St.  Crimes,  j;  21." 

L'ondruction  of  statutes  —  Particular  and  general  trords. — Where  par- 
ticular words  of  a  statute  are  followed  by  those  of  a  general  character, 
the  latter  are  to  be  restricted  to  objects  of  the  siime  kind  as  those  partic- 
ularly mentioned. 

"  An  act  to  amend  the  charter  of  the  city  of  Louisville"  provided  for  the 
imnosition  of  a  line  by  the  city  court  for  any  injury  done  to  any  of  the 
pu  ylic  ways  in  the  city,  and  provided  further,  that  "  all  such  lines,  as  well 
as  the  fines  for  all  other  misdemeanors  committed  in  the  city  of  Louis- 
ville," should,  when  collected,  be  paid  into  the  treasury  of  the  city.  Held, 
that  the  general  words  refer  to  fines  imposed  by  the  city  court  for  offenses 
other  than  injuries  to  the  public  ways,  and  not  to  fines  imposed  by  the  cir- 
cuit court.    Barbour  v.  City  of  Louisville,  83  Ky.,  95. 

A  law  is  be  construed  in  the  light  of  the  settled  policy  of  the  state  with 
reference  to  the  subject-matter  as  indicated  by  previous  legislation.     Ibid. 

Contemporaneous  construction  hy  those  procuring  an  act  is  to  be  re- 
garded in  construing  it.    Ibid, 


>>.,•■ 

:  i 

5 

\\ 

i  :S 


.!■;:: 


;:«■*<*.: 


i.f'v;«'l'i:; 


ittslft 


Is.' ,;  ■ 


494 


AMERICAN  CRIMINAL  REPORTS. 


The  spirit  of  the  lata  and  not  the  letter  must  control  in  its  construction. 
Ibid. 

Disorderly  condtict  —  Beating  drums  in  a  street — lieligiovs  u'orship~ 
Actual  disturbance. —  It  is  no  defense  to  a  complaint  under  General  Laws, 
chapter  2C9,  section  5,  for  beating  a  drum  within  the  compact  part  of  a 
town,  that  it  was  done  in  the  performance  of  religious  worsliip,  and  caused 
no  actual  disturbance  of  tlie  public  peace.     State  r.  White,  61  N.  H.,  48. 

Constitutional  law—  Police  pou'cr  —  Religious  worship. — A  statute  pro- 
hibiting the  beating  of  a  drum  in  the  compact  part  of  a  town,  being  a  rea- 
sonable police  regulation,  is  not  in  conflict  with  the  right  of  religious 
worship  secured  by  tlie  fifth  article  of  the  bill  of  rights.     Ibid, 

Answering  the  contention  that  the  statute  is  an  unauthorized  invasion  of 
the  rights  of  conscience  and  religious  freedom  secured  by  the  constitution, 
the  court  says:  "Religious  liberty  as  recognized  and  secured  by  the  con- 
stitution docs  not  mean  a  license  to  engage  in  acts  having  a  tendency  to 
disturb  the  public  peace  under  the  form  of  religious  worship,  nor  does  it 
include  the  right  to  disregard  those  regulations  which  the  legislature  has 
deemed  reasonably  necessary  for  the  security  of  public  order.  A  reason- 
able measure  of  prevention  to  avoid  disturbance  is  not  an  infringement  of 
constitutional  rights. 

"The  police  power  of  the  state  extends  to  the  protection  of  the  lives, 
health,  comfort  and  quiet  of  all  persons,  and  the  protection  of  all  property 
within  the  state ;  and  persons  and  property  are  sul)jected  to  such  restraints 
and  burdens  as  are  reasonably  necessary  to  secure  the  general  comfort, 
health  and  prosperity.  In  the  exercise  of  t)iis  power,  to  sccuro  public 
order  and  tranquillity,  and,  as  a  reasonable  measure  of  prevention,  to  avoid 
disturbances  of  the  peace,  the  legislature  enacted  section  5  of  chapter  209, 
General  Laws.  It  forbids  doing  the  acts  enumerated  in  it  only  within  the 
compact  part  of  a  town.  It  is  not  an  absolute  prohibition,  but  a  reasonable 
restraint  calculated  to  preserve  the  public  peace  without  infringing  upon 
the  rights  of  any  citizen.  The  state  has  authority  to  nuike  regulations  as 
to  the  time,  mode  and  circumstances  under  which  parties  shall  assert, 
enjoy  or  exercise  their  rights,  without  coming  in  conflict  with  any  of  those 
constitutional  principles  which  are  established  for  the  protection  of  private 
rights  and  private  property.  Cooley,  Const.  Lim.,  503;  Com.  v,  Davis,  140 
Mass.,  48.1;  State  v.  Freeman,  38  N.  H.,  430." 

Bawdy  and  disorderly  houses  —  Liability  of  agent  xoho  rents  house. —  The 
agent  of  the  owner,  renting  a  house  knowingly  for  the  purpose  of  a  brotliel, 
may  be  indicted  as  the  keeper  of  such  house.  Troutman  v.  State,  49  N.  J. 
(Law),  33. 

All  persons  who  assist,  aid  or  contribute  to  the  erection  of  a  public  nui- 
sance are  principals,  and  may  be  prosecuted  as  such.  It  is  obvious  that 
the  agent  must  Htaiid  on  the  same  footing  as  the  owner;  for  if  he  has 
knowledge  of  the  unlawful  use  to  be  made  of  the  property,  and  the  owner 
is  in  ignorance,  he  (the  agent)  and  the  tenant  would  alone  be  the  breakers 
of  the  law.  A  case  in  point  is  that  of  People  v.  Erwin,  4  Denio,  129;  the 
indictment  being  against  the  landlord  as  the  keeper  of  the  house.  The 
court  said ;  In  this  cose  the  owner  of  the  property,  as  well  as  the  woman, 
has  been  directly  charged  with  keeping  the  house.    The  indictment  is 


i  i, 


STATE  V.  FULASON. 


495 


nstruction. 

U'orsJnp-^ 
eral  Laws, 
part  of  a 
md  caused 

H.,  48. 
tatute  pro 
ing  a  rea- 
f  religious 

invasion  of 
nstitution, 
)y  tlie  con- 
Rndency  to 
nor  does  it 
lature  lias 
A  reason- 
gement  of 

tho  lives, 
11  propertj- 
1  restraints 
il  comfort, 
ura  i,nblic 
)n,  to  avoid 
lapter  2«9, 
within  the 
reasonable 
ging  upon 
Illations  as 
lall  assert, 
ly  of  those 
of  private 
Davis,  140 

Mse.— The 
a  brothel, 
,  49  N.  J. 

iblic  iiui- 
ious  that 
if  he  has 
he  owner 
breakers 
,129;  the 
ise.  The 
5  woman, 
;tment  is 


ri^ht;  and  we  think  tho  instruction  given  to  the  jury  was  substantially 
correct.  The  man  who  demises  a  house  to  be  kept  as  a  disorderly  house, 
and  which  is  kept  with  his  knowledge,  .  .  .  may  well  be  called  tiie 
keeper  of  the  house,  and  be  punished  as  such. 

The  rule  of  law  thus  stated  was  cited  with  approval  in  the  case  of  State 
V.  Williams,  30  N.  J.  (Law),  10;>;  and  in  this  latter  case  it  is  assumed  that 
the  owner  may  be  charged  as  the  keeper  of  the  house.  The  principle  under- 
lying these  decisions  is  that  the  owner  contributes  by  his  act  to  the  pro- 
duction of  the  nuisance;  and,  as  there  are  no  accessories  in  misdemeanors, 
he  thereby  becomes  a  principal,  and  may  be  indicted  in  that  chariicter.  It 
is  plain  the  agent  of  the  owner  stands  within  the  scope  of  the  principle. 


State  v.  Fulason. 

(79  Me.,  117.) 

Perjury  :  Indictment  —  Allegation  of  time. 

Indictment  —  Alleoatiox  of  time.— An  indictment  should  set  forth 
with  precision  some  particnl;tr  day  as  the  time  when  the  otrenae  was 
committed,  although  it  is  not  essential  that  the  offense  charged  be 
proved  to  have  been  committed  on  the  precise  day  alleged,  except  in 
cases  where  time  is  material,  or  an  essential  element  in  the  constitu- 
tion of  the  offense,  and  where  the  only  allegation  in  reference  to  time 
is  stated  to  be,  "  heretofore,  to  wit,  at  the  supreme  judicial  court  bogun 
and  holden  at  Machias,  within  and  for  the  county  of  Washington, 
aforesaid,  on  the  first  Tuesday  of  January  in  the  year  of  our  Lord 
1886,"  the  indictment  should  be  quashed. ' 

On  report  from  Supreme  Judicial  Court,  Washington  County. 
Indictments  for  perjur}'. 

Edward  E.  Livermore,  county  attorney,  for  the  state. 
George  M.  Hanson  and  Ethjar  Whidden,  for  respondent. 

Foster,  J.  It  is  unnecessary  to  reiterate  the  well-established 
rule  in  criminal  pleadings,  which  has  so  often  been  the  subject 
of  judicial  decision,  that  tho  day  upon  which  the  state  claims 
that  the  offense  was  committed  should  be  stated  in  the  indict- 
ment with  certainty  and  precision.  State  v.  Day,  74  Me.,  221. 
No  indictment  can  be  sustained  which  fails  to  set  forth  with 
precision  some  particular  day  as  the  time  when  the  offense 

>  See  note. 


.i^ 


.3' 


At 


o' 


'  f, ' 


496 


AMERICAN  CRIMINAL  REPORTS. 


charged  against  the  accused  was  committed,  although  it  is  not 
essential  that  the  offense  charged  be  proved  to  have  been  com- 
mitted on  the  daj'  alleged,  exce|)t  in  eases  whore  time  is  ma- 
terial, or  an  essential  element  in  the  constitution  of  the  oU'ensc. 
^tate  V.  Hanson,  39  ]\le.,  340;  State  v.  Babr,  o-t  ]\re.,  52;  Hhtte 
V.  T/iur,sthi,  35  Me.,  2(>0;  Com.  v.  Aihi)„,%  1  (iray,  483;  1  Dish. 
Crim.  Proc,  §g  237,  251.  The  rule  should  be  complied  witli. 
It  must  not  be  left  to  inference  or  conjecture.  A  departure 
from  the  well-settled  doctrine  <rf  the  necessity  of  certainty 
and  precision  in  the  allegations  as  to  time  and  phico  in  crim- 
inal pleadings  would  be  dangerous  in  the  extreme.  However 
severe  and  unnecessarily  strict  these  rules  may  sometimes 
appear,  they  have  been  too  long  established  for  tlieir  propriety 
to  be  questioned,  or  the  necessity  of  the  reason  for  their  estab- 
lishment to  be  stated.  Wiiile  these  rules  are  recognized  by  all 
the  authorities,  and  are  being  constantly  sustained  by  judicial 
decisions,  the  question  that  has  most  frecpicntly  arisen  has  been 
in  reference  to  the  absence  of  these  rules,  and  whether  certain 
averments  have  fuHilled  their  requirement. 

In  the  cases  now  before  us  the  indictments  contain  no  sulli- 
cient  averment  of  the  time  when  the  offense  of  perjury  is 
alleged  to  have  been  committed.  No  particular  day  is  set 
forth.  All  that  could  reasonably  be  understood  in  relation  to 
time  is  that  it  was  during  the  i)articular  tei'm  of  court  named 
in  the  indictments.  The  only  allegation  in  relation  to  time  is 
that  it  was  "heretofore,  to  wit,  at  the  supremo  judicial  court 
beffun  and  holden  at  j\Iaehias,  within  and  for  the  countv  of 
Washington,  aforesaid,  on  the  lirst  Tuesday  of  January,  in 
the  year  of  our  Lord  1S80,  by  Charles  J)anl'orth,"  etc.  That 
the  time  referred  to  relates  particularly  to  the  session  of  the 
court  is  apparent,  not  only  from  the  language  used,  but  also 
from  the  fact  that  the  indelinite  statement  of  time  contained 
tirst  in  the  term  "heretofore"  is  immediately  thereafter  par- 
ticularized under  the  videlicet,  "  to  wit,  at  the  supreme  judicial 
court  begun,"  etc. 

In  State  v.  Hanson,  supra,  this  court  held  that  designating 
the  term  of  the  court  at  which  the  offense  happened  was  not 
a  sufficient  averment  of  the  time  required  to  be  stated  in  an 
indictment  for  perjury.  Such  indictment  could  not  be  sus- 
tainetl  as  giving  the  accused  sufficient  notice  of  the  "nature 


STATE  V.  FULASON. 


497 


1  it  is  not 
)een  coni- 
»e  is  nia- 
e  oironse. 
^2;  Shite 

p;  1  nish. 

iod  with. 

lopiirtiire 

certainty 

in  crini- 

llowover 

jnietinios 

iropricty 

cir  estab- 

ed  hy  all 

judicial 

las  been 

;r  certain 

no  sufH- 
erjiiry  is 
ay  is  set 
'lation  to 
■t  named 
o  time  is 
iai  court 
oiinty  of 
uary,  in 
3.     That 
n  of  the 
but  also 
:)ntaine(l 
ter  ]y,\r- 
judicial 

gnating 
was  not 
d  in  an 
be  sus- 
'  nature 


and  cause  of  the  accusation  against  him,"  required  by  the  con- 
slitution.  Although  the  legislature  has  seen  fit  in  some  par- 
ticulars to  simplify  the  common-law  requisites  in  indictments 
for  perjury,  which  formerly  required  great  care  and  nicety  of 
statement,  and  to  reduce  the  essential  averments  to  the  small- 
est possible  compass  consistent  with  constitutional  require- 
ments, yet  even  according  to  the  form  prescribed  by  statute 
the  distinct  allegations  of  time  and  place  are  among  the  req- 
uisites of  the  several  particulars  which  go  to  make  up  the 
offense.  R  S.,  ch.  122,  §  4;  State  v.  Corson,  59  Me.,  141.  The 
defendant  is  entitled  to  a  more  definite  allegation  of  time  than 
that  contained  in  these  indictments. 

In  accordance  with  the  terms  of  the  report,  the  entry  must 
be,  indictments  quashed. 

Peters,  C.  J.,  Walton,  Danforth,  Emery  and  Haskell,  JJ., 
concurred. 

Note. —  Indictment  must  allege  falsity  of  matter  sworn  to.— An  indict- 
ment for  false  swearing  or  for  perjury  must  negative,  by  special  averment, 
the  matter  alleged  to  have  been  sworn  to  by  the  accused ;  and  it  is  not  suf- 
ficient to  allege  in  general  terms  that  it  was  false.  Ferguson  v.  Com.,  85 
Ky.,  — . 

Indictment  —  General  charge  of  materiality. —  In  an  indictment  for  per- 
jury, charged  to  have  been  perpetrated  by  the  accused,  in  his  defense  on  a 
criminal  prosecution,  it  is  sufficient  to  charge  generally  that  the  matter 
sworn  to  in  the  false  oath  was  material  to  the  issue  or  point  of  inquiry  upon 
which  it  was  takcMi,  without  showing  particularly  how  it  was  material. 
Lea  V.  State,  64  Miss.,  278. 

Indictment  for  false  swearing  as  to  omitted  property  before  board  of' 
eqtialization  of  taxes. —  An  indictment  for  perjury,  to  be  good,  must  show- 
that  the  oath  was  touching  a  material  matter ;  and,  where  it  charges  that 
the  accused  falsely  testified  under  oath  upon  an  investigation  before  the 
board  of  equalization  that  ho  had  no  other  property  on  the  1st  day  of 
April  than  that  included  in  his  tax-list  given  to  the  assessor,  it  must  alsO' 
show  that  he  was  a  resident  of  the  county  on  such  1st  day  of  April,  or  that, . 
having  become  a  resident  subsequent  to  that  time,  he  had  not  been  assessed 
on  such  property  in  another  state  or  county.    State  v.  Wood,  110  Ind.,  82. 

Wilfully,  corruptly,  falsely.—  An  indictment  for  perjury  which  fails  to 
allege  that  the  accused  wilfully,  corruptly  and  falsely  testified  as  alleged, 
though  it  states  the  issues  of  the  case,  and  the  testimony  given,  will  be 
quashed.    Slate  v.  Morse,  90  Mo,,  91. 

Collateral  issue.—  Perjury  may  be  assigned  upon  a  false  statement  affect- 
ing only  a  collateral  issue,  as  that  of  the  credit  of  the  witness.     Washing- 
ton V.  Slate,  32  Tex.  Apj).,  29. 
Vol.  VII  — 32 


ft 


498 


AMERICAN  CRIMINAL  REPORTS. 


What  constitutes, —  Perjury  may  be  assigned  on  false  swearing  on  tlie 
fact  in  issue  in  an  action  to  any  circumstance  which  tends  to  prove  or  docs 
prove  such  fact;  hence  where  A.  instituted  an  action  of  forcible  entry  and 
detainer  against  B.  for  the  possession  of  certain  real  estate,  and  where  it  was 
sought  to  be  shown  by  B.  that  he  held  possession  under  C. ,  by  virtue  of  a  lease 
executed  to  C.  by  the  owner  of  the  land,  the  testimony  of  C.  that  such  lease 
had  :)een  executed  to  him,  but  that  the  original  had  been  lost,  and  that  the 
^■»-  resented  and  identified  by  him  was  a  copy  of  such  original  lease, 
<:., .  ir'  rilse,  would  support  an  assignment  for  perjury,  even  though  it  wjls 
^  '  Cf-  .  'iry  in  order  to  its  validity  that  the  lease  should  be  in  writing. 
Oaiidy  V.  State,  23  Neb.,  436. 

Want  of  jurisdiction  of  cottrt. —  In  the  absence  of  any  law  limiting  the 
punisi  "ent  <  "  '  ^it  larceny  to  one  hundred  dollars'  fine  and  thirty  days' 
imprisonment,  which  n  the  maximum  authorized  by  the  South  Carolina 
constitution  to  be  imposed  by  a  trial  justice  in  any  case,  trial  jubtices  have 
no  jurisdiction  of  that  offense,  and  perjury  cannot  bo  committed  in  a  trial 
before  such  justice  on  a  charge  of  petit  larceny,  as  perjury  cannot  be  com- 
mitted when  the  court  in  which  evidence  is  given  has  no  jurisdiction. 
State  V.  Jenkins,  86  S.  C,  131. 

Power  0.  officer  to  administer  oaths. — The  president  or  any  other  mem- 
ber of  the  board  of  equalization  has  authority,  under  section  flol7.  Revised 
Statutes  of  Indiana,  1881,  to  administer  oaths  to  witnesses  examined  by  them 
in  the  discharge  of  their  duties.     State  v.  Wood,  110  Ind.,  82. 

Number  of  ivitnesses  required. —  In  a  prosecution  for  perjury,  tlie  falsity 
of  the  testimony  or  oath  of  tlie  accused,  upon  which  the  perjury  is  assigned. 
cannot  be  established  by  the  testimony  of  one  witness  alone.  It  may  be 
proved  by  the  testimony  of  one  reliable  witness,  and  such  corroborative 
facts  and  circumstances  as  will  give  a  clear  preponderance  of  the  evidence 
in  favor  of  the  state,  if  such  preponderance  excludes  all  reasonable  doubt 
of  the  guilt  of  the  accused.  Such  corroboiative  facts  or  circumstances 
ought  at  least  to  equal  the  testimony  of  a  single  witness.  Gaudy  v.  State, 
23  Neb.,  436. 

Evidence  tending  to  establish  different  assignments  not  corroborative. — 
On  an  indictment  for  perjury,  charged  to  have  been  committed  by  tiio  ac- 
V  cused,  in  his  defense  to  an  indictment  for  •'  unlawfully  retailing  "  whisky,  it 
is  error  to  treat  proof  of  several  and  separate  sales,  which  dilfcrent  witnesses 
testified  had  been  made  by  defendant  at  different  times,  as  corroborative 
evidence  of  e.ach  other.  Proof  of  one  assignment  is  not  corroborated  by 
proof  of  another,  even  when  all  the  perjuries  assigned  are  committed  at 
the  same  time  and  plfice.     Lea  v.  State,  64  Miss.,  278. 

Same.—  Under  Code  of  Criminal  Procedure  of  Texas,  article  746,  pro- 
viding that  no  person  shall  be  convicted  of  perjury  except  "upon  the 
testimony  of  two  credible  witnesses,  or  of  one  credible  witness  strongly  cor- 
roborated by  other  evidence,  as  to  the  falsity  of  the  defendant's  statement 
under  oath,  or  upon  his  own  confession  in  open  court,"  a  conviction  cannot 
be  sustained,  where  the  alleged  false  statement  was  that  a  hide  claimed  to 
have  been  taken  from  a  steer  alleged  to  have  been  stolen  by  W.  was  taken 
by  defendant  and  W.  frona  a  dead  cow,  on  the  testimony  of  a  witness  that 
he  was  at  W.'s  house  on  the  evening  of  the  day  of  the  alleged  theft,  and 


PEOPLE  V.  PLATT. 


499 


ing  on  tlie 
ove  or  (Iocs 
entry  and 
'here  it  was 
le  of  a  lease 
t  such  lease 
nd  that  the 
ginal  lease, 
>ugh  it  was 
in  writing. 

niiting  the 
thirty  days' 
h  Carolina 
stices  have 
d  in  a  trial 
lot  be  com- 
urisdiction. 

)ther  nieni- 
17,  Revised 
led  by  them 

the  falsity 
is  assigned. 
It  may  be 
>rroborative 
le  evidence 
lable  doubt 
cumstances 
ly  V.  State, 

ohorative. — 
I  by  the  ac- 
"  whisky,  it 
it  witnesses 
)rroborativo 
;:>borated  by 
>mmitted  at 

le  740,  pro- 
"upon  the 
trongly  cor- 
i  Statement 
;tion  cannot 
( claimed  to 
was  taken 
s'itness  that 
i  theft,  and 


found  "W.  and  one  M.  skinning  a  beef  they  had  just  killed,  and  that  two 
days  thereafter  witness  and  another  (who  corroborates  him)  went  to  W.'s 
house,  and  found  the  hide  of  the  stolen  steer.    Maines  v.  State,  20  Tex. 

App.,  14. 

Record  of  the  cause  in  which  the  perjury  was  alleged  to  have  been  com- 
mitted being  in  evidence,  and  the  testimony  being  conflicting,  failure  to 
charge  that  the  judgment  is  not  evidence  of  the  perjury,  or  the  falsity  of 
the  statement  assigned  for  perjury,  which,  had  it  been  believed,  would  have 
tended  to  convict,  is  reversible  error.    Kitchen  v.  State,  20  Tex.  App.,  tOR- 

Variance  —  Dates. —  On  the  trial  of  an  indictment  for  perjury,  charging 
the  defendant  with  wilfully  swearing  falsely  that  he  did  not,  on  the  24th 
of  December,  1883,  enter  a  saloon,  and  drink  intoxiriting  liquors,  it  is  re- 
versible error  to  admit  evidence  tending  to  prove  that  he  swore  that  be 
did  not  enter  such  saloon,  and  drink  such  liquors,  on  the  24th  of  December, 
1883,  and  that  he  did  so  enter  and  drink  on  December  24,  188r3.  State  v. 
Frisbij,  90  Mo.,  530. 

Subornation  of  perjury  —  Procv ring  affidavit  of  incompetent  person. — 
Defendants  were  indicted  for  procuring  false  evidence,  in  causing  a  per- 
son, whom  they  were  charged  with  knowing  to  be  incompetent,  to  make 
aflSdavit,  to  be  used  on  a  motion  for  a  new  trial.  Held,  that  if  defendants 
did  not  know  or  suspect  the  mental  unsoundness  of  affiant,  and  she  appar- 
ently understood,  assented  to,  and  swore  to  the  affidavit,  they  would  not  be 
criminally  liable,  although  upon  investigation  they  might  have  discovered 
her  incompetency.     People  v.  Brown,  74  Cal.,  300. 

In  this  case  the  court  says:  The  rule  of  caveat  emptor  as  to  notice  cannot 
apply  to  criminal  responsibility.  It  is  not  at  all  analogous  to  the  rule  ac- 
cording to  which  it  is  sometimes  conclusively  presumed  that  one  intended 
the  natural  and  obvious  consequences  of  his  acts,  and  will  not  permit  him 
to  say  he  did  not  know  that  the  consequences  would  follow.  Nor  is  it  like 
those  cases  of  involuntary  manslaughter  in  which  carelessness  or  reckless- 
ness are  held  to  be  criminal.  Undoubtedly  theio  are  cases  in  which  lan- 
guage similar  to  that  contained  in  the  charge  of  the  learned  judge  is  used : 
but  they  are  all  cases  in  which  a  duty  is  impooed  upon  the  person  to  inquire, 
and  not  to  do  so  is  itself  a  dereliction. 


People  v.  Platt. 
(07  Cal.,  21.) 


Perjury:  Insolvent's  schedule  — Construction  of  statute  — Repeal  by  im- 
plication —  Allegations. 

1.  Omission  op  property  from  insolvent's  schedule  and  false  veri- 
fication.—  Where  a  petitioner  in  insolvency  wilfully  omits  from  his 
schedule  any  of  his  property,  and  then  verifies  his  petition,  schedule 


500 


AMERICAN  CRIMINAL  REPORTS. 


',<*'Di. 


m 


li 


and  inventory,  aa  prescribed  by  law,  he  is  guilty  of  perjury,  notwith- 
standing the  California  insolvency  act  provides  that  an  omissioTi  of 
property  from  an  insolvent's  schedule  shall  constitute  a  misdemeanor. 
The  general  law  regarding  perjury  is  not  inconsistent  with  such  ])ro- 
vision  of  the  insolvency  act,  and  i?  not  in  that  regard  repealed  by  it ; 
the  false  verification  being  the  act  which  constitutes  the  perjury,  and 
not  the  omission  of  the  property,  which,  before  the  said  insolvent  law, 
constituted  no  offense,  but  is  by  such  act  made  a  misdemeanor. 

3.  Construction  op  statutes  — Repeals  by  implication.— The  construc- 
tion of  statutes  in  respect  to  repeals  by  implication  is  that  the  earliest 
act  remains  in  force  unless  the  two  are  manifestly  inconsistent  with 
and  repugnant  to  each  other.  It  is  necessary  to  the  implication  of  a 
repeal  that  the  objects  of  the  two  statutes  be  the  same.  If  they  are 
not,  both  will  stand,  though  they  refer  to  the  same  subject. 

8.  Information  for  felony  — Sufficiency  op  allegation  and  descrip- 
tion OP  property. —  An  allegation  in  an  information  that  the  defend- 
ant "  wilfully  concealed  a  large  amount  of  property,  consisting  among 
other  things  of  diamonds,  watches,  jewelry,  money,  and  other  p«>rsonal 
effects  belonging  to  him  and  to  his  estate,"  is  a  sufficient  descrijjtion 
of  such  property  on  a  charge  of  perjury  in  liaving  wilfully  sworn 
falsely  to  an  inventory  in  insolvency,  from  which  he  omitted  said 
property.! 

Appeal  from  an  order  of  the  Superior  Court  of  Los  Angeles 
County,  sustaining  a  demurrer  to  an  information. 

Attorney- General  Marshall^  for  appellant. 

J.  F.  Godfrey  and  Iloxoard  tfi  Roberts,  for  respondents. 

Sharpstein,  J.  It  seems  to  bo  conceded  that  a  petitioner  in 
insolvency  who  should  wilfully  omit  from  his  schedule  any  ol' 
his  property,  and  then  verify  his  petition,  schedule  and  inven- 
tory in  the  form  and  manner  prescribed  by  law,  would  be 
guilty  of  perjury,  were  it  not  for  a  provision  in  the  insolvent 
act  which  makes  such  omission  a  misdemeanor.  And  the  re- 
spondent insists  that  the  latter  act  "creates  a  misdemeanor  of 
what  belorc  was  a  felony,"  and  that  "■  the  old  law  is  gone  by 
reason  of  the  repugnance,  and  the  offender  can  only  be  in- 
dicted under  the  new."  But  the  latter  act  docs  not  make  the 
verification  of  a  schedule  by  a  petitioner,  from  wliich  he  has 
wilfully  omitted  some  of  his  property,  a  misdemeanor.  If  he 
"fraudulently  or  designedly  omits  from  his  schedule  any  prop- 
erty or  effects  whatsoever,  .  .  .  he  shall  be  deemed  guilty 
of  a  misdemeanor."    We  cannot  discover  any  repugnancy  or 

•  See  note. 


PEOPLE  V.  PLATT. 


501 


y,  notwitii- 
nnisHion  of 
ademeanor. 
such  ])ro- 
caleil  by  it ; 
fJi'jiii-y,  and 
olvciit  law, 
nor. 

le  construo 
the  earliest 
istent  with 
ication  of  a 
If  they  are 

ID  DKSCRIP- 

the  dofend- 
Hng  among 
ler  personal 
de.scrijrtion 
ully  sworn 
nitted  said 


5  Angolt's 


mts. 

itioner  in 
lo  any  of 
nd  inveii- 
voulil  bo 
insolvont 
ul  the  re- 
loiinor  of 
gone  by 
ly  1)0  in- 
lakc  tlie 
1  he  lias 
r.  If  he 
iny  prop- 
3d  guilty 
nancy  or 


inconsistency  between  that  and  a  statute  which  makes  the 
verification  of  a  false  schedule,  by  a  petitioner  who  knows  it 
to  be  false,  a  felony.  "  The  invariable  rule  of  construction  in 
i-espect  to  the  repealing  of  statutes  by  implication  is  that  the 
earliest  act  remains  m  force,  unless  the  two  are  manifestly  in- 
consistent with  and  repugnant  to  each  other."  Bowen  v. 
Lease,  5  Hill,  221.  It  is  necessar\%  to  the  implication  of  a  re- 
peal, that  the  objects  of  the  two  statutes  be  the  same.  If  they 
are  not,  both  will  stand,  though  they  may  refer  to  the  same 
subject."  United  States  v.  Claflln,  97  U.  S.,  546.  Here  the 
objects  of  the  two  statutes  are  not  the  same.  And,  as  was 
said  in  liaioson  v.  liaivson,  52  111.,  62: 

"The  acts  are  not  upon  the  same  subject,  and  if  the  rule  be, 
as  it  undoubtedly  is,  that  a  subsequent  act  upon  the  same  sub- 
ject will  not  be  held  to  repeal  a  former  act  by  implication, 
unless  the  new  act  contains  provisions  contrary  to  or  irrecon- 
cilable with  those  of  the  former  act,  with  much  more  force  and 
propriety  may  it  be  argued  that  a  subsequent  act,  not  on  the 
same  subject,  shall  not  be  construed  to  repeal  a  former  act  by 
mere  implication." 

We  are  unable  to  find  anything  in  the  insolvent  act  which 
indicates  that  it  was  the  intention  of  the  legislature  to  make 
that  a  misdemeanor  which  was  a  felony  before.    That  which 
it  declares  shall  be  deemed  to  be  a  misdemeanor  was  neither  a 
misdemeanor  nor  a  felony  before.    The  allegation  that  the  de- 
fendant "  wilfully  concealed  a  large  amount  of  property,  con- 
sisting, among  other  things,  of  diamonds,  watches,  jewelry, 
money,  and  other  personal  effects  belonging  to  him  and  his  es- 
tate," seems  to  us  to  be  sufficiently  definite  and  certain.     The 
defendant  swore  that  his  schedule  and  inventory  contained  a 
full,  perfect  and  true  discovery  of  all  his  estate,  real,  personal 
and  mixed,  goods  and  effects.    The  charge  is  that  he  wilfully 
omitted  from  his  schedule  the  property  above  mentioned.     A 
minute  description  of  the  property  might  be  impossible;  and, 
if  exacted,  might  defeat  the  ends  of  justice,  as  a  variance  be- 
tween the  proof  and  allegation  would  be  fatal.    We  think  the 
defendant  is  sufficiently  apprised  by  the  information  of  the 
charge  which  he  must  be  prepared  to  meet  on  the  trial.     If 
innocent,  there  is  no  more  danger  of  his  being  convicted  than 
there  would  be  if  the  property  had  been  described  with  the 


u? 


502 


AMERICAN  CRIMINAL  REPORTS. 


5 


lp|liiii:^i 


greatest  minuteness,  although  his  chanco  of  escape,  if  guilty, 
miffht  have  been  much  better  if  it  had  been  so  describt'd. 

Judgment  reversed,  with  directions  to  the  court  below  i(» 
overrule  the  demurrer  to  the  information,  with  leave  to  the 
defendant  to  plead  thereto  as  he  shall  be  advised. 

Thohnton,  J.,  and  Mykick,  J.,  concurred. 

Note. —  Indidmcnt. —  A u  imlictmunt  for  perjury  was  found  agnin.st  out' 
Georgo  W.  Anderson.  Amkr»oii  v.  The  State,  104  Ind.,  467.  The  defend- 
ant liad  been  arrested  in  a  bastardy  i)roceeding  and  thereupon  made,  sul)- 
scribed  his  name  to,  and  tiled  with  the  justice  before  wliom  said  proceedings 
were  holden,  his  certain  affidavit  for  a  continuance  of  said  cause.  The  cliarge 
in  the  indictment  was  set  out  in  the  language  and  words  of  tlie  statute,  ex- 
cept that  the  word  "  feloniously  "  was  substituted  for  tlie  word '•  falsely." 
It  was  also  charged  in  the  indictment  that  the  affidavit  was  false,  and  that 
the  appellee  well  knew  that  tiie  affidavit,  ami  all  stated  therein,  were  wholly 
false,  and  that  he  wilfully,  knowingly  and  voluntarily  committed  wilfid 
and  corrupt  iwrjury.  These  several  charges  in  connection  with  the  word 
"  feloniously"  the  court  thought  ought  to  be  reganleJ  as  eciuivalent  to  the 
word  "  falsely."  Under  the  statute  of  Indiana  and  the  decisions  of  its  si  - 
preme  court  the  indictment  need  not  be  in  the  e.\act  words  of  the  statute, 
but  other  words  conveying  the  same  meaning  may  l)e  used.  Revised  Stat- 
utes (Indiana),  1881,  §  1737;  Malotie  v.  The  State,  14  Ind.,  319;  The  State  v. 
Oilbert,  21  Ind.,  474;  Tlie  State  v.  Walls,  54  Ind.,  561;  Shim  v.  The  State, 
68  Ind.,  423.    See,  also.  The  State  v.  Dark,  8  Blackf.,  526. 

Taking  the  several  charges  in  the  indictment  together  the  omission  of  the 
word  "  falsely  "  was  not  considered  a  sufficient  ground  to  warrant  the  quash- 
ing of  the  indictment. 


(  ^  'if  s 


ii    -< 


Hughes  v.  The  People. 

(116  111.,  330.) 

Practice:  Affidavits  as  to  incompetency  of  juror — Sickness  of  juror  — 

Amended  transcript. 

1.  Witness  —  Repetition  op  question.—  It  is  held  in  this  case  that  the 

record  discloses  no  reason  why  a  witness  should  be  asked  to  repeat  the 
same  thing  which  he  had  testified  before,  or  why  the  same  question 
should  be  put  to  him  which  had  been  put  to  him  before. 

2.  Juror— Competency  of  —  Affidavits  and   counter-affidavits.— 

Objections  to  a  verdict  on  the  ground  of  incompetency  of  jurors  for  the 
reason  that  they  had  previously  formed  and  e.xpressed  opinions  are 
supported  in  this  case  by  affidavits,  and  resisted  by  counter-affidavits 
of  the  jurors  themselves,  and  of  persons  alleged  to  have  been  present 


HUGHES  V.  THE  PEOPLE. 


508 


if  Hllilty, 

>L'(|. 

billow  u> 
'0  to  tile 


«nin.st  one 

l»0    (It'i'oiKl- 

nadc,  .sul)- 
ocet'diiiMs 
riio  (•liargc 
itatuto,  ox- 
"lalsoly." 
I',  ami  that 
ere  wliolly 
toil  wilful 
I  the  Word 
lent  to  tliu 
IS  of  its  SI  - 
'e  statuto, 
visei.  Stat- 
'fie  State  v. 
The  State, 

■iioij  of  tlie 
the  quash- 


f  juror— 

that  the 
epeat  the 
'  question 

>AVITS.— 
s  for  tlie 
lions  are 
vff](hivits 
1  iJresuiit 


at  the  times  in  question.  Tlieae  affidavits  and  countor-afBdnvits  ave 
reviewe«l,  and  tiio  objection  ovemiied.  More  r.v  parte  afHdavits 
nilegiuK  tiiat  JurorH  liad  previously  fornu'd  antl  expressed  opinions  aio 
a  most  unsatisfactory  niode  of  estahlisliiiif;  jiny  sueli  fail. 

8.  Slc'KSKSS  OK  .ii'UOK.  —  Tlie  siekness  of  a  Juror  for  a  short  sp.aee  of  time, 
after  their  retirement  from  the  bar,  is  not  ground  for  hcttiiiK  aside 
tlieir  verdiet,  wliere  tlie  deliberations  of  a  jury  were  entirely  suspended 
until  after  tiie  Juror  was  so  far  restored  that  he  could  and  did  take 
part  in  their  deliberations. 

4.  Amknoki)  TiiANsruiiT  or  uix-ohd  on  apprau— In  this  case  the  orig- 
inal transcrii>t  of  tlii'  rceord  exhibited  an  indietment,  imperfect  by  an 
omission  of  the  recital  at  the  beginning  of  the  indictment  of  the 
words,  "come  the  grand  Jury."  The  adilitlonal  transcript  of  the  rec- 
ord tiled  in  the  supreme  court,  on  leave  given  for  that  jiurpose,  presents 
the  same  recitals  as  the  original  transcript:  with  the  insertion,  in  the 
proper  place,  of  the  wonls  '"come  the  grand  jury."  The  certificate  to 
the  original  transcript  by  the  clerk  of  the  court  in  which  the  record 
remains  is  held  to  import  verity,  and  cannot  be  contradicted  by  ex 
parte  aflidavits.  The  omission  of  tin?  words  above  set  out  is  further 
held  to  be  not  such  an  imperfection  as  to  invalidate  the  trial  and  con- 
viction ou  such  an  indictment. 

Writ  of  error  to  the  Circuit  Court  of  Crawford  County, 
the  lion.  W.  C.  Jones,  Jiidf^e,  presiding. 

Allen  <&  Olwin  and  l*a)'ker  tl*  Crowleij,  for  plaintiff  in  error. 
George  Jlunt,  attorney -general,  for  the  people. 

Scott,  J.  At  the  March  term,  1884,  of  the  circuit  court  of 
Crawford  county,  Daniel  Hughes  was  indicted  for  the  murder 
of  Victor  M.  Joseph.  On  the  trial  at  a  subsequent  term  of 
that  court  defendant  was  found  guilty,  by  the  jury  to  whom 
the  cause  was  submitted,  of  the  crime  of  manslaughter,  and 
the  punishment  at  service  in  the  penitentiary  was  fixed  at  a 
period  of  twelve  years.  A  motion  for  a  new  trial,  supported 
as  to  some  grounds  by  affidavits,  was  made,  and  was,  after  duo 
consideration  by  the  court,  overruled,  and  judgment  pro- 
nounced on  the  verdict.  Defendant  brings  the  case  to  this 
court  on  error. 

The  defense  in  the  trial  court  seems  to  have  been  rested 
mainly  on  two  grouiuls:  (1)  That  the  killing  was  done  in  self- 
defense;  and  (2)  that  defendant  was  insane  at  the  time,  and 
was  not  therefore  subject  to  punishment  as  for  crime.  It  is  for 
these  reasons  it  is  insisted  in  this  court  it  was  error  in  the  cir- 
cuit court  to  refuse  a  new  trial,  and  that  the  present  judgment 


l-t>  t 


504 


AMERICAN  CRIMINAL  REPORTS. 


m 


I 


I 


tM 


:?J5^"'^ 


pi 


i-r/f!* 


J.B-, 


should  be  reversed.     The  record  is  quite  voluminous,  but  tiio 
evidence  it  contains  has  been  subjected  to  the  most  carofid 
study.     It  is  seen  the  testimony  relating  to  the  homicido  is 
very  brief,  and  contains  very  little  that  is  conflicting.     Xounc 
saw  the  fatal  shot  fired.     The  killing  took  place  ai  about  !> 
o'clock  in  the  evening  of  the  11th  of  Decemijei",  IS,s;}.     Just 
before  the  shooting  defendant  was  in  iiis  drugstore  with  a 
brother  of  deceased.    Tl»ey  wore  talking  about  deceased,  wiioui 
defendant  seems  to  have  thought  was  one  of  a  party  that  had 
subjected  him  to  great  indignity  about  a  montii  previous  to 
that  time.     The  conversation  that  took  i)lace  shows  tlcfoudant 
entertained  very  intense  hatred  to  tliose  persons  who  had  oi' 
raged  him,  and  deceased  was  one  of  tlie  siispt^cted  ])arties. 
seems  defendant  and  llerschel  Joseph  wore  in  tlie  store  of  u^, 
fendant,  and  had  the  door  locked  and  tlie  lights  ])ut  out.     It 
was,  however,  a  very  bright  moonlight  night,  so  that  any  ono 
passing  the  windows  could  be  readily  recognized.     Some  om 
passed,  and  defendant  incpiired  who  it  was,  and  was  told  it 
was  deceased,  going  to  see  the  nuiil  carrier,  to  ascertain  if  ho 
could  ride  with  him  the  next  day  to  Kobinson.     Presently  the 
deceased  returned,  and  probably  looked  into  the  store  through 
the  glass  in  the  doors,  and  passed  on,  and  as  soon  as  he  had 
passcdjdefendant  pulled  out  a  revolver,  and  said  to  IIer.schel 
Joseph,  "You  remain  here  till  I  come  back,"  and  unlocked  the 
door  and  went  out.     It  was  but  a  brief  moment  before  the  re- 
port of  a  pistol  shot  was  heard.     Immediately,  llerschel  Josoph 
went  out  and  met  defendant,  who  told  hiui  he  had  killed 
his  brother.     The  shot  fired  by  defendant  took  etlV'ct  in  the 
head  of  deceased,  and  death  ensued  almost  instantly.     When 
the  body   was   found,  both   hands  of  deceased  were  in   his 
])ockets.     He   had  no  weapons  of  any  kiiul   on   his  person. 
There  is  some  conflict  as  to  what  defendant  said  to  llerschel 
Joseph  just  after  the  fatal  shot  was  fired:  but,  assuming  either 
account  of  what  was  said  to  be  true,  it  does  not  seriously  affect 
the  merits  of  the  case. 

Without  entering  upon  any  close  analysis  of  the  testimony, 
it  is  sufficient  to  say  that,  after  a  most  careful  consideration, 
the  conclusion  reached  is,  it  wholly  fails  to  sustain  the  theory 
the  killing  was  done  in  self-defense.  Had  defendant  remained 
in  his  store,  there  is  no  pretense  deceased  would  have  inter- 


HUUHES  I'.  THE  PEOPLE. 


505 


,  but  tli(. 
t  (-'.'irofiil 
inicido  is 

Xooiic 
about,  !» 
"»."].     Just 
o  with  ii 
'd,  whom 
that  had 
ivious  to 
«'foii(hint 
had  oi' 
rtics. 
)re  of  uv, 
out.     It 
any  one 
■ionio  out 
s  told  it 
aiii  if  ho 
Mitly  the 
!  through 
s  lie  had 
Ilerschcl 
•eked  the 
I'o  the  re- 
A  Joseph 
ul  killed 
it  in  the 
When 
0  in   his 
person, 
Flerschel 
ig  either 
)Iy  aflfect 

stitnony, 
leration, 
3  theory 
emained 
vo  inter- 


f(.rcd   with  him  in  any  way  whatever.    He  had  passed  by 
tho  store  without  givinj?  defendant  any  cause  of  complaint. 
Surely,  when  one  goes  out  in  search  of  his  enemy,  and  kills 
hiui  when  I'uund,  it  cannot  be  said  it  was  done  in  self-defense. 
Nor   has    the  suggestion   defentlant   went  out   to  ascertain 
whether  any  injury  was  being  done  to  his  jiroperty  anything 
in  its  support.     The  evidence  shows,  past  all  doubt,  the  killing 
was  done  some  considerable  distance  from  his  storehouse,     lie 
must  have  gone  in  search  of  deceased.     The  law  will  not  per- 
mit a  |)erson  to  follow  up  his  enemy,  and,  if  an  encounter 
ensue,  justify  the  killing  as  being  done  in  clf-defense.     In  this 
case  the  evidence  tends  to  show  no  encounter  ever  took  place, 
(loing  upon  the  street,  where  he  knew  deceased  was,  and,  on 
meeting  him,  defendant  commanded  him  to  throw  up  his  arms, 
and  because  he  did  not  do  it  he  slmt  iiim.    The  evidence  tends 
to  show  a  deliberate  purjiose  to  kill  deceased,  rather  than  it 
was  <lone  in  self-defense,  and  so  the  jury  must  have  found. 
That  conclusion  seems  to  bo  best  sustained  by  the  weight  of 
the  evidence.     At  least,  there  is  no  reason,  in  the  opinion  of 
this  court,  for  setting  the  verdict  aside  on  that  ground. 

Most  of  the  testimony  in  the  record  is  in  regard  to  the  con- 
dition of  the  defendant's  mind, —  whether  he  was  sane  or  insane 
at  the  time  of  the  homicide.  This  has  also  been  subjected  to 
the  closest  scrutiny.  It  is  seen  it  is  in  a  measure  conflicting, 
but  the  weight  of  the  entire  evidence  seems  to  be  with  the  con- 
clusion reached  by  the  jury.  Defendant  was  a  practicing 
physician,  and  had  a  drug  store,  which  he  attended  himself. 
Since  he  had  a  i)artial  paralysis,  some  of  his  neighbors  —  physi- 
cians as  well  as  non-prul'essional  jjcrsons  —  think  he  was  not 
exactly  right  in  his  mind, —  certainly  not  as  strong  as  he  was 
before  his  sickness.  Others  could  see  no  difference  in  his  men- 
tal condition.  Physicians  that  were  well  acquainted  with  him, 
and  saw  him  every  day,  testified  they  thought  he  was  entirely 
sane.  There  would  seem  to  be  much  good  sense  in  the  state- 
ment of  one  of  the  physicians  when  he  says  the  "  idea  of  insane 
impulse  without  insanity  is  unreasonable ; "  and  then  he  added : 
"  There  can  be  no  such  condition  as  a  person  being  sane  one 
moment,  insane  the  next,  and  sane  again  immediately  after." 
This  witness  further  says :  "  Insanity  is  a  disease  of  the  brain," 
and  expresses  his  disbelief  of  the  idea  the  '"  brain  can  be  dis- 


506 


AMERICAN  CRIMINAL  REPORTS. 


f 


I     ■f 


M 


,1  ( 


/ 


it: 


I.  1 


eased  one  moment  and  sound  the  next."  The  theory  is  ad- 
vanced, "  if  insanity  existed  at  all,  it  will  continue  to  exist  until 
the  cause  is  removed,  and  will .  manifest  its  presence  at  inter- 
vals." How  this  may  be  can  only  bo  kno\vn  to  such  persons 
as  have  made  such  matters  as  mental  diseases  the  subject  of 
study.  All  the  medical  witnesses  seem  to  a^ree  that  in  wliat 
they  term  ^^ hemiplegia"  the  "mind  is  generally  weakened." 
One  of  the  physicians  examined  as  a  witness  for  defendant 
says:  "There  is  not  much  ditference  between  a  person  whose 
mmd  is  weakened  by  heniijfleyia  and  any  other  weak-minded 
person."  It  may  be,  and  is  doubtless  true,  defendant's  mind 
was  weakened,  or  perhaps  impaired  to  some  extent,  by  the 
attack  of  paralysis  suffered ;  but  that  he  was  rendered  insane 
b}'  it  is  not  made  to  ai)pear  from  the  evidence.  What  occurred 
just  before  and  immediateh'  after  the  homicide  shows  most 
conclusively  defendant  knew  what  he  i)urposed  to  do,  and  what 
he  had  done.  Of  this  there  cannot  be  the  slightest  doubt.  The 
evidence  singularly  fails  to  show  defendant  was  in  that  mental 
condition  that  would  relieve  him  from  the  conserpjcnce  of  his 
acts.  The  linding  of  the  jury  on  this  branch  of  the  case  is  well 
sustaii- , J  by  the  evidence. 

It  is  assigned  as  error  on  the  trial  that  one  of  the  physicians 
examined  on  behalf  of  tlie  people  was  ])ermitted  to  give  it  ;is 
his  opinion  that  defendant  was  sane  when  he  killed  deceased. 
No  exception  was  taken  on  the  trial  as  to  the  giving  of  that 
testimon}^  and  the  objection  it  was  error  cannot  be  considered 
in  this  court.  The  rule  on  this  subject  is  well  settled,  and  the 
point  made  need  not  be  elaborated. 

It  is  also  insisted  it  was  error  in  the  court  to  refuse  to  admit 
the  evidence  of  the  witness  Elliot,  showing  threats  against  de- 
fendant, after  defendant  stated  threats  had  been  communicateil 
to  him.  After  stating  he  had  been  acquainted  with  deceased 
for  about  a  year  before  his  death,  the  witness  was  permitted  to 
and  did  state  he  had  heard  Victor  Joseph  make  threats  against 
Dr.  Hughes.  The  witness  was  then  asked  to  "state  what  they 
were."  It  seems  this  question  was  objected  to  as  being  im- 
proper, but  the  objection  was  "overruled."  Still  it  does  not 
appear  the  witness  made  any  answer  to  it.  The  (piestion  was 
then  asked:  "Have  you  heard  the  deceased,  Victtu*  Jose|)li, 
make  any  threats  against  the  defendant,  Dr.  Hughes,  now  on 


HUGHES  V.  THE  PEOPLE. 


507 


'ory  is  ad- 
exist  until 
L'  tit  inter- 
!li  persons 
subject  of 
iit  in  wliat 
eakent'd." 
defendant 
•son  ^\■llose 
ak-ininded 
lilt's  mind 
lit,   by  the 
red  insane 
it  occui'i'od 
lows  most 
•,  and  wliat 
oiibt.    Tiio 
luit  mental 
nee  of  his 
!ase  is  well 

|)hysicians 
J  give  it  as 
I  deceased, 
in^r  of  that 
considered 
id,  and  the 

a  to  admit 
i^^ainst  de- 
municated 
li  deceased 
rmitted  to 
its  a  (gainst 
what  they 
being  im- 
does  not 
estion  was 
[)r  Josepii, 
js,  now  on 


trial?"  This  question  was  also  objected  to,  and  the  objection 
sustained.  There  is  one  obvious  reason  M'hy  the  mling  of  the 
court  was  entirely  correct.  The  witness  had  just  stated  he  had 
heard  deceased  make  threats  against  defendant,  and  there  was 
no  reason  why  he  should  be  asked  to  repeat  the  same  thing. 
Had  the  witness  been  asked  to  state  "  what  they  were,"'  as  the 
court  had  just  decided  might  be  done,  no  doubt  the  witness 
would  have  been  permitted  to  answer.  This  was  not  done, 
and  thus  in  the  ruling  of  the  court  there  was  no  error. 

It  is  also  assigned  for  error  that  three  of  the  jm-ors  impan- 
eled to  try  defendant  were  incompetent,  for  the  reason  they 
had  previously  "forinetl  and  expressed"  opinions  as  to  his 
guilt,  Affidavits  filed  in  support  of  the  motion  £or  a  new  trial 
on  this  ground  do  tend  to  show  one  or  more  of  thc^se  jurors  had 
previously  expressed  opinions  concerning  the  guilt,  of  defend- 
ant; but  the  jurors  implicated  deny,  in  the  most  positive  man- 
ner, they  ever  maile  the  statements  attributed  to  them.  Their 
affidavits  in  this  respect  find  some  support  in  the  affidavits  of 
persons  alleged  to  have  been  ]>resent.  Considering  all  the  affi- 
davits together,  it  is  not  thought  it  is  sufficiently  proved  either 
of  the  jurors  whose  competency  is  now  called  in  question  had 
previously  formed  any  such  opinions  concerning  the  guilt  of 
defendant  as  would  disqualify  them,  or  either  of  them.  A  ver- 
dict ought  not  to  be  set  aside  on  such  grounds,  unless  it  is  made 
to  appear  from  satisfactory  evidence  the  jurors  had  previously 
"formed  and  expressed"  opinions  hurtful  to  the  defense. 
Scarcely  a  criminal  case  comes  to  this  court  where  the  same 
objection  to  the  competency  of  jurors  is  not  taken,  founded  on 
mere  ex  parte  affidavits.  Such  affidavits  are  a  most  unsatisfac- 
tory mode  of  establishing  any  fact  in  a  case.  The  i)artios  mak- 
ing them  are  subject  to  no  cross-examination, —  one  of  the  most 
potent  methods  ever  adopted  to  elicit  truth  and  to  detect  false- 
hood. Besides  that,  a  mere  casual  remark  concerning  an}- 
matter  may  be  imperfectly  understood  or  not  accui'ately  re- 
membered. Many  cogent  reasons  readily  suggest  themselves 
why  the  testimony  as  to  such  previously  expressed  opinions  by 
persons  called  as  jurors  should  be  of  a  clear  and  satisfactory 
character,  otherwise  a  verdict  fully  wan-anted  by  the  evidence 
might  have  to  be  set  aside,  and  the  ends  of  justice  defeated. 

Another  ground  of  error  insisted  upon  is  the  fact  one  of  the 


rpiit'n.    I 


m 

m 


508 


AMERICAN  CRIMINAL  REPORTS. 


Ik 

•       ■;■ 

1; 

1 

1^'  :; 

s  ■ 

i   ■ 

1"'  1 

jurors  became  suddenly  very  ill,  so  much  so  as  to  render  him 
incompetent,  for  the  time  bemg,  to  comprehend  what  was 
transpiring.  It  does  not  seem  to  have  been  noticed  the  juror 
was  sick  until  tlie  case  had  been  concluded,  and  until  after  the 
jury  had  retired  to  consider  of  their  verdict.  Then  the  juror 
had  a  spasm  or  fit  that  rendered  him  unconscious  for  a  few 
hours.  The  affidavits  of  a  number  of  the  jurors  w^ere  taken, 
and  they  all  show  no  discussion  of  the  case  was  had  by  any  of 
them  until  after  the  juror  was  so  far  restored  that  he  could  and 
did  take  part  in  their  deliberations.  Tliat  being  so,  there  was 
nothing  in  the  sickness  of  the  juror  that  was  prejudicial  to 
defendant.  It  is  fully  shown  defendant  had  the  benefit  of  tiie 
judgment  of  this  juror,  as  well  as  that  of  all  others  in  their 
deliberations  on  his  case. 

The  point  is  made  against  the  validity  of  the  present  con- 
viction the  record  does  not  show  the  indictment  against  de- 
fendant was  returned  by  the  "grand  jury"  in  open  court. 
The  additional  transcript  of  the  record  filed  in  this  court,  on 
leave  given  for  that  purpose,  does  show  the  indictment  was 
returned  in  open  court  by  the  "grand  jury,"  as  the  law  re- 
quires shall  be  done.  In  the  original  transcript  of  the  record 
filed  in  this  court  it  was  recited:  "And  now,  on  this  0th  day 
of  March,  A.  D.  1881,  and  the  fourth  judicial  day  of  the 
March  term  of  the  circuit  court  of  Crawford  county,  Illinois, 
duly  selected  and  sworn,  and  returned  into  open  court  the  fol- 
lowing true  bills  of  indictment,  all  of  which  are  indorsed  by 
the  foreman  thereof  as  and  for  true  bills," — among  which  was 
this  indictment  against  defendant  for  murder.  The  additional 
or  amended  transcript  filed  in  tiiis  court  contains  the  same  ex- 
act words  above  quoted,  with  the  addition  "  came  the  grand 
jury."  It  is  said  these  words,  "  came  the  grand  jury,"  have 
been  inserted  in  the  record  since  the  original  transcript  was 
filed  in  this  court,  and  copies  of  affidavits  stating  that  fact 
have  been  filed  with  the  argument  in  this  case.  The  addi- 
tional transcript  is  duly  certified  by  the  clerk  of  the  court  in 
which  the  record  remains,  as  being  correct,  with  the  words 
"came  the  grand  jury"  in  it.  Ilis  attestation  imports  verity, 
and  it  cannot  be  impeached  by  mere  ex  parte  affidavits  filed  in 
the  clerk's  office.  They  constitute  no  part  of  the  record,  an<l 
cauaot  be  considered  by  this  court.     liut  aside  from  this  view, 


SHULAR  V.  THE  STATE. 


501) 


'ender  liim 
what  Avas 
the  juror 
il  after  the 
the  juror 
for  a  few 
k'cre  taken, 
by  any  of 
e  could  and 
,  there  was 
ojudicial  to 
nofit  of  the 
ers  in  their 

resent  con- 
against  de- 
)pea  court, 
is  court,  on 
ctnient  was 
;he  law  re- 

the  record 
-his  (Uh  (lay 
day  of  tiie 
it}'',  Illinois, 
»urt  the  fol- 
ndorsod  by 
;■  which  was 
3  additional 
10  same  ex- 

the  grand 
jury,"  have 
iscript  was 
J  that  fact 

The  addi- 
he  court  in 
the  words 
Drts  verity, 
vlts  filed  in 
•ecord,  an<l 
I  this  view, 


this  court  does  not  wish  to  be  understood  as  holding  or  even 
intimating  that  the  original  transcript  of  the  record  was  so 
defective  it  would  not  sustain  the  conviction.  The  context 
shows  plainly,  and,  correctly  read,  it  means,  "  came  the  grand 
jury"  into  open  court  to  present  indictments;  and  that  is  suffi- 
cient. The  objection  taken  to  the  record  in  this  respect  is  too 
subtle  to  be  entertained  by  this  court. 

No  error  is  perceived  in  the  record  that  in  the  slightest  de- 
gree affects  the  merits  of  the  case,  and  the  judgment  of  the 
circuit  court  must  be  affirmed. 


Shular  v.  The  State. 

(105  Ind.,  289.) 

Practice:  Change  of  venue  —  Presence  of  defendant  —  Murder — Employ- 
vient  of  counsel  —  Constitutional  law —  Waiver  of  constitutional  privi- 
leges —  Misconduct  of  counsel  and  jurors  —  Bill  of  exceptions. 

1.  Change  of  venue  by  one  op  two  defendants  —  Presence  of  defend- 

ant IN  court. —  A  motion  for  a  chiiuge  of  venue  by  one  of  two  de- 
fendants jointly  indicted  effects  a  severance ;  but  it  is  not  necessary 
that  the  otiier  defendant  be  present  in  court  when  the  motion  is  made. 

2.  Employment  of  counsel  to  assist  tug  prosecuting  attorney.— Dis- 

cretionary with  the  court. 

3.  Inspection  by  jury  of  premises  where  crime  was  committed  —  Pres- 

ence of  accused. —  It  is  not  error  to  send  tlie  jury  to  view  the  prem- 
ises wliere  a  homicide  was  committed,  without  directing  that  the 
accused  shall  be  present  during  the  inspection. 

4.  Constitutional  law. — The  provisions  of  the  federal  constitution  do 

not  apply  to  prosecutions  for  criminal  offensus  under  state  laws,  ex- 
cept in  cases  where  the  states  are  expressly  named. 

5.  A  statute  providing  that  a  court,  with  tlie  consent  of  all  the  parties, 

may  send  a  jury  to  view  tlie  premises  where  a  crime  was  committ«;d, 
is  not  in  conflict  with  the  provision  of  tlie  constitution  conferring 
upon  an  accused  tiie  privilege  of  being  confronted  by  the  witnesses 
against  him. 
(J.  Waiver  of  constitutional,  privileoes. — Wlvere  an  accused  asks  a  priv- 
ilege given  by  statute,  he  must  take  it  upon  the  terms  imposed  by  the 
statute,  and  in  demanding  such  a  statutory  privilege  he  waives  all 
right  to  object  to  the  order  made  on  his  request,  allliough  sucii  priv- 
ileges may  be  coustitutional  onee. 


i&i 


m 


510 


AMERICAN  CRIMINAL  REPORTS. 


III  M 


I  ( 


7.  Akqument  — Misconduct  op  cjuxsel  — A  judgment  will  not  be  re- 

versed for  misconduct  of  counsel  in  argument,  unless  it  was  suoli  as 
to  prejudice  the  substantial  riglits  of  the  accused.  * 

8.  Instructions. —  It  is  not  error  to  instruct  the  jury  that,  in  considering 

the  credibility  of  a  witness,  "you  may  consider  his  impeachment  in 
case  he  has  been  successfully  impeached." 

9.  Practice  —  Bill  op  exceptions  —  Misconduct  op  jurors.— Wliere  it 

appears  tliat  evidence  was  heard  by  the  trial  court  upon  the  question 
whether  jurors  were  guilty  of  misconduct,  it  is  necessary,  in  order  to 
present  the  question  to  the  supreme  court,  that  all  the  evidence, 
whether  oral  or  written,  shoulil  be  incorporated  in  the  bill  of  excep- 
tions. 

From  the  Montgomery  Circuit  Court. 

IF.  //.  Thompson,^  Wni.  li.  Herod  and  J.  West,  for  appellant. 
A.  B.  Anderson,  F.  21.  Howard,  G.  W.  Paul,  J.  E.  llnm.- 
phrles  and  W.   W.  Thornton,  for  the  state. 

Elliott,  J.  The  appellant  was  jointly  indicted  with  -Tamos 
Cunningham  for  the  murder  of  William  Lane.  There  were 
separate  trials,  and  the  appellant  was  convicted  of  man- 
slaughter. The  trial  court  entertained  a  motion  by  Cunning- 
ham for  a  change  of  judge,  and  made  an  order  for  a  change 
at  a  time  when  the  appellant  was  not  present,  and  this  rnling 
is  assigned  for  error.  In  our  judgment,  the  ruling  \yas Hot 
erroneous.  The  statute  ex[»ressly  provides  that  parties  jointly 
indicted  may  sever  in  their  defensos,  and  may  demand  sepaiatc 
trials.  The  application  for  a  change  of  judge  by  Cunningham 
was  a  declaration  that  he  desired  to  sever  in  his  defense,  and 
that  was  a  declaration  he  had  a  right  to  make,  whether  tlio 
party  jointly  indicted  with  him  was  or  was  not  present.  It  is 
not  necessary  for  a  party  who  claims  a  right  to  sever  to  make 
an  explicit  declaration  of  his  election.  It  is  sulHcient  if  his 
acts  are  such  as  indicate  an  election  to  be  separately  tried.  One 
of  two  defendants,  jointly  indicted,  has  a  right  to  apply  for  a 
change  of  venue,  and  the  effect  of  granting  the  order  is  to  sever 
the  defenses,  leaving  the  defendant  who  does  not  aj)ply  for  a 
change  to  be  tried  in  the  court  where  the  indictment  was  found, 
and  carrying  the  trial  of  the  other  defendant  to  the  court  to 
which  the  cause  was  ordered  upon  his  application.  State  r. 
Carothers,  1  Greene  (Iowa),  404;  State  v.  Martbi,  2  Ired.,  10 1; 

1  See  note. 


SHULAR  V.  THE  STATE. 


511 


11  not  be  re- 
was  auoli  as 

1  considering 
eachment  in 

5.— Where  it 
the  question 
y,  in  order  to 
he  evidence, 
)ill  of  excep- 


appellant. 
V.  E.  Ham- 


V'ith  James 
riiere  wore 
1  of  man- 
y  Cunnino'- 
I'  a  ehaiiofo 
this  riiliiiff 
1^  \yas  Hot 
ties  jointly 
ul  st'i)ai'ate 
imninoimni 
efeiiso.  and 
hether  tiie 
sent.  It  is 
er  to  make 
jient  if  his 
tried.  One 
ipply  for  a 
*  is  to  sever 
ipply  for  a 
was  found, 
le  court  to 
1.  Stftte  V. 
Jred.,  101; 


State  V.  Wetherford,  25  Mo.,  439;  Eunter  v.  People,  1  Scam., 
4.53;  State  v.  John,  2  Ala.,  290;  1  Bish.  Crim.  Proc,  §  75; 
Whart.  Crim.  PI.  &  Pr.  (8th  ed.),  sec.  602. 

In  Brown  v.  State,  18  Ohio  St.,  496,  it  was  held  that  a  change 
of  venue,  upon  the  application  of  one  of  several  defendants, 
was  proper,  and  that  it  operated  as  a  severance.  The  court 
there  said : 

"It  seems  quite  clear  to  us  that  a  motion  by  one  of  two  per- 
sons, jointly  indicted,  for  a  change  of  venue  as  to  him  alone, 
necessarily  involves  and  includes  a  motion  for  a  separate  trial, 
and  that  the  granting  of  such  motion  necessarily  involves  and 
includes  the  granting  of  a  separate  trial  also." 

As  the  motion  made  by  Cunningham  for  a  change  of  judge 
necessarily  involved  the  declaration  of  an  election  to  be  tried 
separately,  it  follows  that  the  appellant  was  not  entitled  to  de- 
mand that  he  should  be  present  when  it  was  made  and  acted 
upon,  since  that  matter  concerned  his  co-defendant  alone. 
"Where  there  is  a  severance,  it  is  not  necessary  that  all  who  are 
jointly  indicted  should  be  in  court  when  orders  are  made  that 
affect  one  only  of  the  defendants.  It  is,  indeed,  held  by  re- 
spectable courts  that  the  defendant  need  not  be  present  when 
an  application  for  a  change  of  venue  is  nuule  in  his  own  behalf. 
State  V.  Elk: Its,  03  Mo.,  151);  Jlopkhis  v.  State,  10  Lea,  2()4; 
Ii(ithnrhUd  V.  State,  7  Tex.  App.,  519.  This  rule  is  in  harmony 
with  the  decision  in  Epj>s  v.  State.  1(»2  Ind.,  539.  that  a  defend- 
ant need  not  be  present  at  the  hearing  of  motions,  although  he 
must  be  |n*esent  on  the  trial.  There  are  authorities  supporting 
this  doctrine,  among  them:  State  v.  Jefhutf,  20  S.  C,  383;  State 
V.  Faheij,  35  La.  Ann.,  9;  State  v.  Clarh;  32  La.  Ann.,  558; 
State  r.  ll<irr!x,  34  La.  .\nn.,  118.  AVe  need  not,  however,  go 
further  in  this  instance  than  to  declare  that  one  of  two  defend- 
ants, jointly  indicted,  may  apply  for  a  change  of  judge;  that 
the  application  involves  a  declaration  of  a  demand  for  a  sepa- 
rate trial;  and  that  the  presence  of  the  ])erson  jointly  indicted 
with  the  defendant,  at  the  time  the  application  ii-  made  or  ruled 
on,  is  not  recjuired. 

It  is  within  the  discretion  of  the  trial  court  to  direct  the  em- 
ployment of  counsel  to  assist  the  prosecuting  attorney  in  con- 
ducting a  trial  against  a  person  accused  of  felony. 


Wood 


State,  92  lud.,  269;  SkheH  v.  State,  95  Ind.,  471;  Tidl  o.  State 


512 


AMERICAN  CRIMINAL  REPORTS. 


1' 

; 

■h 

] 

^    "" 

t!: 

1 

1) 

l- 

i 
if 

i' 
ii: 

1 

II 

if 
'^1 

■■_ :  \  b- 

f ' 

1 

■  1 

>■ 

1 

^  ' 

1 

ir-s 


ft 


<?»  rel.,  99  Ind.,  238;  Bmdshaw  v.  State,  17  Xeb.,  147;  State  r. 
MontfjoDh'r//,  22  X.  W.  Rop.,  639.  The  trial  court  did  the  up- 
pellant  no  legal  injury  in  appointing  counsel  to  assist  the  proso- 
cution;  nor  was  there  anythini^  said,  in  announcing  its  rulino-s 
upon  that  question,  which  trenched  upon  any  of  the  ai)pcllant's 
rights.  It  is  a  mistake  to  suppose  that  one  jointly  indicted 
with  another  has  a  right  to  a  joint  trial.  On  the  contrary,  at 
common  law,  the  prosecution  might  demand  separate  trials, 
and,  under  our  statute,  any  defendant  may  demand  that  a  s(>pa- 
rate  trial  be  awarded  him.  The  court,  when  justice  requires 
it,  may  suggest  in  express  words  the  propriety  of  separate 
trials. 

The  court,  on  the  motion  of  the  appellant,  sent  the  jury  to 
inspect  the  premises  where  the  homicide  was  committed,  aiul 
did  not  direct  that  the  defendant  should  be  )>rescnt  when  the 
inspection  was  made,  but  nc»  retpiest  was  made  l)y  the  defeiul- 
ant  that  he  should  be  allowed  to  be  present;  nor  was  there 
even  a  suggestion  to  the  court  that  he  desired  to  accompany 
the  jury;  nor  did  he,  although  he  was  present  when  the  jury 
left  the  court-room,  ask  that  lie  be  permitted  to  go  with  thcui; 
nor  did  he  object  in  any  manner  to  their  making  the  inspection. 
But  the  record  shows  more  tiian  this,  for  it  siiows  that  the  court 
directed  the  attenti<Mi  of  tlie  defendant  and  his  counsel  to  tiip 
statute,  and  stated  that  it  requii'ed  the  consent  of  the  jiai'tii^s. 
and  inquired  if  tliey  consented  to  the  order;  to  which  inipiiry. 
as  the  record  ivcites.  tlie  defendant's  counsi'l  responded  '*  by 
renewing  tlieir  rc(piest,  and  defendant  indicated  iiis  assent." 
Many  authorities  are  cited  by  counsel  in  s'Mpport  of  the  general 
princii)le  that  tin;  defeiidant  must  bo  present  wiu'ii  evidence  is 
given  against  him;  and  that  tiiis  is  tliegenei-al  rule  we  have  no 
doubt,  but  tiie  (jiu^stion  here  is  uliether  the  case  is  within  the 
rule,  not  whattiie  general  rule  is.  Whetiier  tin;  cas(;  is  within 
this  genei'al  rule  must  depend  upon  the  provisions  of  our  stat- 
ute and  the  conduct  of  the  appellant.  Our  statute  provides 
that  "whenever,  in  tlje  opinion  of  the  court,  and  with  the  con- 
sent of  all  the  parties,  it  is  pro])er  for  the  jury  to  have  a  view 
of  the  place  in  which  any  material  fact  occurred,  it  may  order 
them  to  be  conducted  in  a  body,  under  the  charge  of  an  ollicer, 
to  the  place,  which  shall  bo  shown  to  them  by  some  j)erson  ap- 
pointed by  the  court  for  that  purpose.     While  the  jury  arc 


7;  State  V. 
id  tlio  ,ip. 
the  proso- 
its  rulinrrs 
Jippelliint's 
y  indicted 
tintrary.  at 
ate  triiils, 
lat  a  so  pa- 
ce reqiiiros 
•f  separate 

lie  jury  to 
flitted,  and 
.  when  tlie 
lie  det'ond- 
'  was  there 
iccoinpany 
n  the  jury 
[vitli  tli(>iii; 
inspection, 
it  theconrt 
nsel  to  tiie 
he  pai'tios. 
[ill  iiKpiiry. 
)nded  "  bv 
is  assent." 
he  u'cneral 
evidence  is 
iVe  iiave  no 
within  the 
(!  is  within 
)f  our  stat- 
;  provides 
h  t  lie  con- 
ivo  a  view 
may  order 
an  oHicer, 
l)erson  ap- 
)  jury  arc 


SHULAR  I.  THE  STATE. 


513 


thus  absent,  no  person,  other  than  the  officer  and  the  person 
appointed  to  show  thoin  the  place,  shall  speak  to  them  on  any 
subject  connected  with  the  trial."  This  statute  does  not  intend 
that  the  view  of  the  premises  where  a  crime  was  committed 
shall  be  deemed  i)art  of  the  evidence,  but  intends  that  the  view 
may  be  had  for  the  purpose  of  enabling  the  jury  to  understand 
and  apply  the  evidence  placed  before  them,  in  the  presence  of 
the  accused  in  open  court.  Deferring,  for  the  present,  the  con- 
sideration of  the  authorities,  and  reasoning  on  principle,  wo 
shall  have  no  difficulty  in  concluding  that  the  statute  does  not 
intend  that  an  inspection  of  a  place  where  a  crime  was  com- 
mitted shall  be  taken  as  evidence.  It  cannot  be  seriously 
doubted  that  evidence  can  only  be  delivered  to  a  jury  in  a 
criminal  case  in  oi)en  court,  and,  unless  there  is  a  judge  or 
judges  ])resent,  there  can  be  no  court.  The  statute  does  not 
intend  that  the  judge  shall  accompany  the  jury  on  a  tour  of 
inspection.  This  is  so  obvious  that  discussion  could  not  make 
it  more  plain.  The  jury  are  not,  the  statute  commands,  to  be 
spoken  to  by  any  one  save  by  the  officer  and  the  person  ap- 
pointed by  the  court,  anil  they  are  forbidden  to  talk  upon  the 
subject  of  the  trial.  It  is  the  duty  of  the  jurors  to  view  the 
premises,  not  to  receive  evidence,  and  nothing  could  be  done 
by  the  defendant  or  by  his  counsel  if  they  were  present,  so 
that  their  ])resence  could  not  bonetit  him  in  any  way,  nor  their 
absence  prejudice  him.  The  statute  expressly  provides  who 
shall  accompany  the  jury,  and  this  ex|)ress  ])rovision  implies 
that  all  others  shall  be  excluded  from  that  right  or  privilege. 
It  is  quite  clear  from  these  considerations  that  the  statute  does 
not  intend  that  the  defendant  or  the  judge  shall  accompany 
the  jury;  and  it  is  equally  clear  that  the  view'  obtained  by  the 
jury  is  not  to  be  deemed  evidence. 

Turning  to  the  authorities,  we  shall  find  our  conclusion  well 
supported.  The  statute  of  Kansas  is  substantially  the  same  as 
ours,  except  that  it  does  not,  as  ours  does,  require  the  consent 
of  all  the  parties;  and  in  a  strongly  reasoned  case  it  was  held 
that  it  was  not  error  to  send  the  jury,  unaccompanied  by  the 
defendant,  to  view  the  premises  where  a  burglary  had  been 
committed.  IJrewer,  J.,  by  whom  the  opinion  of  the  court 
was  prepared,  said,  in  speaking  of  the  statute: 

"  Nothing  is  said  in  it  about  the  presence  of  the  defendant, 
Vol.  VII  — 33 


lfo''<J 


l.>.«« 


■ 

HE^^^tf/V'-S    • 

^Bh]:: 

H 

1 

m   ' 

m  i  ^^ 

'will- 

1^1 


h.^« 


614 


AMERICAN  CRIMINAL  REPORTS. 


the  attorneys,  the  officers  of  the  court,  or  the  judge.  On  the 
contrary,  the  language  seems  to  imply  that  only  the  jury  ami 
otticor  in  charge  are  to  bo  present.  The  trial  is  not  tempo- 
rarily transferred  from  the  court-house  to  the  plac<^  of  viow. 
They  are  '  to  bo  conducted  in  a  body '  '  while  thus  aliscnt.' 
This  means  that  the  place  of  trial  is  unchanged,  and  that  the 
jury,  and  the  jury  only,  are  temporarily  removed  therefrom. 
Just  as  when  the  case  is  finally  submitted  to  the  jury,  and  thov 
'retire  for  deliberation,' there  is  simply  a  temporary  removal  of 
the  jury.  The  place  of  trial  is  unchanged.  And  whether  the  jurv 
retire  to  the  next  room,  or  are  taken  to  a  building  many  blocks 
away,  the  effect  is  the  same.  In  contemjdation  of  law  the 
place  of  trial  is  not  changed.  The  judge,  the  clerk,  the  olH- 
cers,  the  records,  the  parties,  and  all  that  go  to  make  up  tlie 
organization  of  a  court,  remain  in  the  court  room."  State  v. 
Adams,  20  Kan.,  311. 

The  keenest  scrutiny  will  disclose  no  infirmity  in  this  rea- 
soning,  and  it  is  in  close  agreement   with  that  of   our  own 


court. 


In  Jefersnni'iUe,  etc.,  R.  R.  Co.  v.  Bowcn,  40  Ind.,  54.>,  this 
court  overruled  the  case  of /imy/.vtvVA',  ^^A'.,  R.  R.  Co.  v.  Cochran, 
10  Ind.,  5G0,  and  adopted  the  views  of  the  supreme  court  of  Iowa 
expressed  in  Clone  v.  Sanim,  27  Iowa,  503.  That  court,  in 
speaking  of  a  statute  similar  to  ours,  said: 

"  It  seems  to  us  that  it  was  to  enable  the  jury,  by  the  view 
of  the  premises  or  place,  to  better  understand  and  comj)rehend 
the  testimony  of  the  witnesses  respecting  the  same,  and 
thereby  the  more  intelligently  to  ajjply  the  testimony  to  the 
issues  on  trial  before  them,  and  not  to  make  them  silent  wit- 
nesses in  the  case,  burdened  with  testimony  uidcnown  to  both 
parties,  and  in  respect  to  which  no  opportunity  for  cross- 
examination  or  correction  of  error,  if  any,  couhl  be  afforded 
either  party." 

The  doctrine  of  Close  v.  Samm,  supra,  was  again  expressly 
approved  in  Ileadij  v.  Vcvay,  etc.,  T.  P.  Co.,  .52  Ind.,  117,  and 
it  was  said:  "It  results  that  the  impression  made  ujwn  the 
minds  of  the  jurors  does  not  constitute  a  part  of  the  evidence 
in  the  cause." 

'Y\\QCdi.%QoiJeffersonville,etc.,R.  R.  Co.  v.  Bowen,  sitpra,  wa.s 
approved  in  Gagg  v.  Vetter,  41  Ind.,  228,  and  in  City  of  lu- 


i  i  •■ 


SHULAR  r.  THE  STATE. 


515 


J.     On  t\w 
j"0'  uiitl 

lot  tcMllpo- 

>'■  of  view. 

IS  alist'iit/ 

I  that  the 

thoi'ofroin. 

.and  they 

cmoval  (jf 

ei"  the  jury 

iny  blocks 

)f  law  tlie 

,  the  olH- 
ike  up  the 
State  V. 

n  this  roa- 
our  own 

p.,  545,  this 
V.  Cocln-an, 
U't  of  Io\v;i 
t  court,  in 

y  tlie  view 
mipreliend 
5a  me,  and 
ony  to  the 
silent  wit- 
-n  to  both 
for  cross- 
}  afforded 

expressly 
,  117,  and 

Ujwn  the 
i  evidence 

mp7'a,  was 
Uty  of  la- 


dianapolifi  v.  Scott,  72  Ind.,  196.  In  the  case  last  cited  it  was 
said:  *'  Perhaps,  strictly  speaking,  the  jury  had  no  right  to  do 
anything  more  than  to  view  the  premises,  thereby  to  enable 
them  to  bettor  apply  the  evidence  given  upon  the  trial." 

Counsel  refer  us  to  Carvull  v.  Slate,  5  Neb.,  1,  where  a  differ- 
ent view  is  taken,  but  we  cannot  yield  assent  to  that  decision. 
It  is  not  a  carefully  considered  case,  not  a  single  authority  is 
cited,  and  there  is  no  reasoning  in  support  of  the  conclusion 
reached.  The  court  there  quote  the  statute,  and  say:  "  Thia 
should  be  done  in  the  presence  of  the  prisoner,  unless  he  decline 
the  privilege,  as  he  is  entitled  to  have  all  the  evidence  received 
by  the  jury  taken  in  his  presence."  Nothing  more  is  said  upon 
the  subject,  and  the  entire  question  is  thus  summarily  disposed 
of.  If  our  decisions  are  correct  in  holding  that  the  view  of  the 
premises  taken  l>y  the  jury  does  not  constitute  evidence,  that 
of  the  learned  court  from  whose  decision  we  have  quoted  must 
be  wrong. 

In  our  investigation  we  have  found  two  other  cases  which 
deserve  a  brief  notice.  In  State  v.  Bei'tin,  24  La,  Ann.,  40,  the 
jury  were  permitted  to  inspect  the  place  where  a  burglary  had 
been  committed,  and  a  witness  for  the  prosecution  was  di- 
rected to  accompany  them,  and  point  out  to  them  places 
marked  on  a  diagram,  and  this  was  held  to  be  error.  AVe  need 
only  sa}'  of  that  case  that  the  permission  given  a  witness  to 
explain  a  diagram  to  the  jury  was  permission  to  give  evidence 
in  the  absence  of  tlie  accused,  and  that  there  was  not  in  Louisi- 
ana any  statute  allowmg  a  jury  to  make  an  inspection.  These 
two  characteristics  plainly  mark  the  difference  between  that 
case  and  this.  The  case  of  Benton  v.  State,  30  Ark.,  328,  is  not 
so  easily  disposed  of,  but  we  think  that  it  falls  into  the  same 
error  as  the  court  did  in  Carroll  v.  State,  supra,  of  regardmg 
the  inspection  of  the  jury  as  evidence.  If  it  is  not  evidence, 
and  so  our  cases  declare,  the  ground  falls  away  from  the  as- 
sumption upon  which  the  whole  argument  of  the  case  rests, 
and  we  concur  with  the  court  in  State  v.  Adams,  supra,  in  de- 
clining to  assent  to  it.  Benton  v.  State,  supra,  is,  however, 
addressed  to  the  constitutional  phase  of  the  subject,  of  which  we 
shall  hereafter  speak,  and  does  not  consicl^"  the  effect  of  such 
a  statute  as  ours.  It  cannot,  therefore,  be  deemed  an  author- 
ity upon  the  construction  and  effect  of  the  statute,  since  it 


516 


AMERICAN  CRIMINAL  REPORTS. 


rV'* 


does  not  profess  to  discuss  that  subject.  Mr.  "Wharton,  in  a 
single  sentence,  disposes  of  tiie  question,  citing-  the  case  of 
Benton  v.  Shite,  snjmt,  and,  of  coiiree,  must  be  understoml  as 
referring  to  the  procedure  in  jurisdictions  where  there  is  no 
statute  regulating  the  subject.  Whart.  Crim.  Law  (7tli  ed.\ 
§  31(;o. 

Thus  fur  we  have  considered  the  question  immediately  under 
examination  without  reference  to  the  important  provision  of 
our  statute  that  the  view  can  only  be  ordered  upon  "  the  con- 
sent of  all  the  parties,"  as  well  as  without  reference  to  the 
important  fact  that  the  appellant  himself  recjuested  that  the 
jury  be  directed  to  view  the  premises  whore  the  homicide  was 
committed.  As  the  defendant  asked  the  benefit  of  the  provis- 
ions of  the  statute,  he  must  take  the  benefit  just  as  the  statute 
gives  it.  In  discussing,  as  we  shall  presently  (\o,  the  constitu- 
tional phase  of  the  question,  we  shall  refer  to  authorities  whicli 
fully  sustain  this  proposition.  The  statute  here  under  discus- 
sion grants  a  privilege  upon  condition  that  only  the  persons 
designatcnl  by  the  coiwt  shall  accompany  the  jury,  and  the  de- 
fendant has  no  right  to  assail  t)ie  action  of  the  court  in  obey- 
ing the  provisions  of  the  statute  which  he  himself  invoked. 
The  reasoning  of  the  court  in  People  v.  lionnei/,  10  Cal.,  420, 
forcibly  apjilies  to  the  phase  of  the  question  which  we  are  here 
discussing,  as  well  as  to  other  questions  in  the  case.  It  was 
there  said : 

"The  court  had  the  discretion  to  permit  the  jury  to  view 
these  physical  objects,  and  this  was  neither  in  contemplation 
of  the  act,  or  otiierwise,  any  ))art  of  the  trial.  It  was  rather  a 
suspension  of  the  trial  to  enable  the  jury  to  view  the  ground, 
etc.,  that  they  might  better  understand  the  testimony.  We  do 
not  see  what  good  the  presence  of  the  prisoner  would  do,  as 
he  couUl  neither  ask  nor  answer  questions,  nor  in  any  way  in- 
terfere with  the  acts,  observ'ations  or  conclusions  of  the  jur}'. 
If  he  had  desired  to  see  the  ground  that  he  might  be  assisted 
in  his  defense  by  the  knowledge  thus  obtained,  possibly  the 
court  would  have  granted  him  the  jirivilege;  but  the  fact  that 
the  jury  went  upon  the  ground  without  being  accompanied  by 
him  is  no  good  reason  for  setting  aside  the  verdict,  especially 
as  he  neither  made  objection  nor  asked  permission  to  accom- 
pany them  at  the  time." 


SHULAR  V.  THE  STATE. 


517 


:on,  in  a 
<  case  of 
I'stmxl  ;is 
3re  is  ri(» 
(Tth  ed.), 

}ly  nndor 
A'ision  of 
'  the  con- 
;e  to  tlio 
that  tlio 
icicle  was 
10  provis- 
le  statute 
constitn- 
ies  winch 
er  iliscus- 
i  persons 
(1  the  de- 
ill  obey- 
in  voked. 
Cal.,  4-2r», 
)  are  here 
.     It  was 

r  to  view 
smplation 
3  rather  a 
I  ground, 
^  AVedo 
lid  do,  as 
y  wayiu- 
the  jury. 
J  assisted 
isibly  the 
fact  that 
panied  by 
3specially 
to  accom- 


We  come  now  to  the  constitutional  phase  of  the  question. 
We  are  to  bo  governed  by  tho  provisions  of  our  state  constitu- 
tion, and  are  not  controlled  by  the  federal  constitution,  for  the 
reason  that  the  procedure  in  trials  for  offenses  against  the  laws 
of  the  state  is  not  governed  by  the  provisions  of  the  national 
constitution  except  in  cases  where  the  states  are  named.  This 
is  settled  law.  Batler  v.  /State,  07  Ind.,  1578 ;  >Stat>'  o.  Uoswell, 
104:  Ind.,  54:1  iS.  C,  5  Am.  Cr.,  IGO),  and  authorities  cited. 

Tho  provision  of  tho  bill  of  rights  conferring  upon  an  ac- 
cused the  right  to  bo  confronted  by  the  witnesses  is  not  in- 
fringed by  a  statute  which  confers  upon  a  defendant  the  right 
to  waive  the  privilege  of  being  confronted  in  open  court  by 
the  witnesses  of  the  state.  Two  things  concur  in  such  a  statute: 
the  waiver  by  the  accused,  and  the  consent  of  the  state  that  its 
citizens  may  make  such  a  waiver.  Tho  rights  secured  by  the 
constitution  are  fundamental,  but  they  may,  where  the  statute 
so  provides,  bo  waived  by  the  accused.  "  These  rights  nitiy  be 
separated  into  two  classes,  namely,  those  in  which  the  public 
generally,  and  as  a  community,  is  interested,  as  well  as  the  in- 
dividual to  whom  they  hai)i)en  directly  to  apply  in  any  par- 
ticular instance;  and  those,  more  in  the  nature  of  privileges, 
which  are  for  the  bonelit  of  the  individual  alone,  and  do  not 
in  any  way  alfect  the  general  public,  whether  the  individual 
avails  himself  of  them  or  not."  "Waiver  of  Constitutional 
Ilights  in  Criminal  Cases,"  0  Crim.  Law  Mag.,  182.  Tho  pro- 
vision in  the  twelfth  section  of  the  bill  of  rights  securing  to  one 
accused  of  crime  the  privilege  of  being  confronted  by  the  wit- 
nesses belongs  to  the  second  of  tho  two  classes  named,  and  is 
a  privilege  which  may  be  waived. 

In  Bof/f/s  V.  State,  8  Ind.,  -tOS,  it  was  held  that  an  objection 
that  a  deposition  was  taken  without  the  consent  of  the  accused 
was  waived  by  a  failure  to  make  it  in  the  trial  court.  The 
rule,  as  declared  in  the  case  of  Butle/'  v.  State,  supra,  is  that  a 
'  defendant  who  elects  to  take  depositions  under  the  statute  con- 
cedes to  the  state  a  like  privilege,  thus  waiving  his  constitu- 
tional privilege.  This  doctrine  is  firmly  supported  by  the 
authorities.  In  addition  to  those  cited  in  that  case  may  be 
cited  the  following:  Williams  v.  State,  61  Wis.,  2S1;  Wills  v. 
State,  73  Ala.,  362;  State  v.  Warner,  78  Mo.,  044;  Hancock  v. 
State,  14  Tex.  App.,  392.   A  striking  illustration  of  the  doctrine 


518 


AMERICAN  CRIMINAL  REPORTS. 


m. 


I-  i.-'fi 


'   <  '55 


¥  ''\ 


hi 


\m 


that  a  defendant  in  a  criminal  case  may  waive  a  constitutionid 
right  is  supplied  by  those  cases  which  liohl  that,  whore  an  ac 
cusod  takes  a  new  trial  under  a  statute,  lie  waives  ids  ri;^lit  t(t 
insist  upon  the  constitutional  iM«.''ision  proliibiting  a  citizi'n 
from  being  put  in  jeopardy  twice  for  the  same  oll'enso.  in 
Veatt'h  0.  State,  (50  Ind.,  'JDl,  tlio  theory  of  the  appellant  was 
that,  having  been  tried  on  an  indictment  cluirging  him  with 
murder,  and  having  been  convicted  of  manslaughter,  he  could 
not  again  be  tried  for  murder;  but  the  court  denied  the  cor- 
rectness of  the  theory,  and  held  that  he  might  bo  tried  i'or  the 
greater  offense.  It  was  there  said,  among  other  things:  ''Xow, 
it  would  seem  that  if  a  party  takes  a  new  trial  in  a  criminal 
case,  ho  takes  it  on  the  terms  prescribod  by  tiio  statute  and 
consents  to  bo  placed  in  the  same  position  as  if  no  trial  had  been 
had."  Other  cases  assert  a  lik(?  doctrine.  JA>/v/.'*  v.  S/iitf,  1 
Blackf.,  37;  [/m'fnl  Sfufes  v.  Perez,  0  Wheat.,  r>7!);  S'<(te  v. 
Davis,  80  K  C,  3S4;  Conn  v.  Arnohf,  0  Crim.  Law  Mag.,  01; 
Lemlie  v.  State,  IS  Ohio  St.,  300;  LhunijHton''H  Caxe,  14  (irat. 
(Ya.),  502;  United  Staten  v.  Jlanlin.j,  1  AVall.  dr.,  127;  State 
v.^lcL'ord,  S  Kan..  232;  S.  C,  12  Amer.  liej).,  4('.0.  AiK^ther 
illustration  is  supplied  by  the  cases  which  hold  that  where  the 
statute  so  ))rovides  a  jury  trial  may  be  waived.  Jlnrphij  v. 
State,  07  Ind.,  570;  //(.  re  Staf,  <J  C:rim.  Law  Mag.,  82s.  Th(> 
cases  which  hold  that  an  accused  may  voluntarily  wai'  liis 
right  to  bo  present  at  the  trial,  or  may  forfeit  it  scon- 

duct,  furnish  still  further  illustrations  of  the  d(.  we  an; 

considering.  JIct'or/,le  v.  Sfatr,  l^i  Ind.,  30;  Sta,  e.  Wai/n'r,; 
10  Ind.,  357;  Flfj/tt  v.  State,  7  Ohio,  ISO;  Barton  v.  Sic  ,  07 
Qa.,  053;.S'.  ('.,  U  Amer.  Rep.,  713;  (Jnited  States  v.  DavJ.% 
6  Blatch.,  4:('>4.  It  would  not  1)0  dithcult  to  ad<l  many  author- 
ities to  those  we  have  cited,  but  we  deem  them  amply  sulH- 
cient  to  sustain  our  proposition  that  the  statute  under  discussion 
is  not  unconstitutional. 

Assuming,  as  we  feel  satislied  we  may  do,  that  the  statute  is 
constitutional,  and  assuming  that  we  have  correctly  construed 
the  statute,  there  can  be  no  (juestion  that  the  trial  court  com- 
mitted no  error  in  sending  the  jury,  at  the  appellant's  request, 
to  view  the  place  where  the  homicide  was  committed. 

A  new  trial  is  asked  upon  the  ground  that  one  of  the  coun- 
sel for  the  state  was  guilty  of  misconduct  in  the  argument 


. 


SIIULAU  V.  THE  STATE. 


619 


itutionul 
o  an  ac 
i'i;4'lit  to 
IV  citizen 
use.  In 
liiut  was 

ill!    Willi 

10  coiiid 

tlio  ('or- 
lor  the 
'■-Xow, 

ci'iniinal 
tiito  ami 
had  l)eon 
.  -.S'A^A',  I 

A'''^^/<^  r. 

Mag-.,  01; 

U  Giat. 

Aiiotlior 

i'llOI'O  tlio 

'ds.     Thr 

vai'      111... 

--(•on- 

\ve  art' 

II  fl/n/'/'i'^ 
Sid'',  07 

^  autlior- 
ply  sulfi- 
iscussioM 

statute  is 
Dnstruod 
urt  coin- 
request, 

16  coun- 
i'guiuont 


to  tlio  jury.  Tlioro  viro  diireiviit  phases  of  lliis  qucstioli.  and 
wo  will  dispose  of  tlieiii  lis  tliey  are  presented  by  tlio  record. 
The  hill  of  excej)tions  thus  presents  one  phase  of  tlu;  (luostion: 

••  Mr.  Anderson  in  his  closing  argument  said:  ' Mv.  Tli%np- 
stni  talks  about  the  kindness  with  which  he  treated  the  mom- 
ory  of  Jjilly  Lane;  that  he  did  not  attack  it.  and  only  brought 
out  the  conduct  oT  IJiUy  Lane  on  the  night  he  was  killed  be- 
eause  it  was  a  part  of  tlie  transaction  and  circninstances  cul- 
minating in  his  death.  (Jcntleinen  of  the  jury,  if  Mr.  Thomps(»n 
could  have  found  any  proof  to  show  anything  against  the 
character  of  Hilly  Lane,  he  had  the  right  to  introduce  it.  He 
had  the  right  to  prove  tiiat  iJilly  Lane  was  a  desjierato,  quar- 
relsome and  dangerous  man.  Any  evidence  of  that  kind 
would  have  been  competent  and  proper.  Uut  we,  gentlemen 
of  the  jury,  were  precluded  by  the  law  from  attacking  the 
character  of  defendant.  Wo  were  not  allowed  to  show  what 
the  character  of  defendant  was.'  AVhereupon  the  defendant's 
counsel  objected  that  tlie  state's  attorney  was  improperly  com- 
menting upon  the  cliaracter  of  the  defendant,  and  was  en- 
deavoring to  argue  by  innuendo  that  the  character  of  the 
defendant  was  bad.  Wliereujion  the  court  remarked  that  'the 
character  of  the  defendant  is  not  in  question,  and  is  not  to  be 
commented  uptju.'  The  said  Albert  15.  Anderson  thereupon 
said:  'I  have  not  commented  upon  his  character.  I  was  just 
going  to  say,  gentlemen  of  the  jury,  that  while  we  were  pre- 
cluded by  the  law  from  showing  what  the  character  of  the  de- 
fendant was,  it  ajipeared  in  evidence  from  the  defendant's  own 
witness  what  the  character  was.'  To  which  last  statement  of 
the  said  Albert  1>.  Anderson,  and  also  to  the  whole  of  the 
aforesaid  statement  so  madc%  the  defendant  at  the  time  ex- 
cepted." 

So  far  as  the  prosocuting  attorney's  comments  upon  the  right 
of  the  defendant  to  show  the  character  of  the  deceased  are 
concerned,  we  need  only  say  that  no  fault  can  lie  found  with 
them,  for  it  is  the  law  that  in  the  particulars  named  the  char- 
acter of  the  deceased  may  be  proved,  and  it  was  not  an  unrea- 
sonable inference  that  if  it  had  been  bad  the  defendant  would 


have  given  evidence  to  that  effect. 


Xor  was  the  counsel  in 


error  in  saying  that  the  state  had  no  right  to  attack  the  char- 
acter of  the  defendant,  although,  as  the  court  rightly  directed 


* 

'/ 

^ 

^ 

1) 

M^ 

K 

if 

k  < 

> 

if 

i 

i 

,    i 

520 


AMERICAN  CRIMINAL  REPORTS. 


't'  A 


1*' 


the  jury,  his  character  was  not  "  in  question,  and  is  not  to  he 
commented  on."  Nor  was  there  material  error  in  the  state- 
ment that  tlie  character  of  tlie  accused  was  shown  by  the 
testimony  of  his  own  witnesses.  There  are  cases  where  the 
character,  or,  more  strictly  s])eaking,  the  disposition,  of  a  per- 
son accused  of  crime  may  appear  from  the  testimony,  and  there 
was  evidence  in  this  case  tending  to  show  the  disposition  of 
the  defendant.  Where  facts  are  before  a  jury,  it  is  proi)er  fur 
counsel  to  draw  inferences  from  them,  and,  even  though  tliey 
proceed  illogically,  the  error  will  not  require  or  justify  a  re- 
versal. It  is  not  easy  to  define  the  boundar^'^  between  fair  de- 
bate and  misconduct,  but  we  cannot  say  that  the  line  was  j)assed 
in  this  instance,  in  what  was  said  as  to  what  the  evidence 
established. 

In  the  case  of  Proctor  v.  De  Camp^  83  Ind.,  559,  we  said : 

"  There  wjis  evidence  in  the  case  before  us  upon  which  the 
appellee's  counsel  had  a  right  to  comment.  Granting  that  he 
drew  from  it  an  unauthorized  conclusion,  or  that  he  gave  it  a 
wrong  coloring  and  meaning,  he  was  still  within  the  evidence, 
and  when  this  is  so  courts  cannot  interfere.  If  counsel  go  be- 
yond the  evidence,  and  bring  in  foreign  and  unproved  matters, 
courts  should  interfere,  and  if  tlie  trial  court  does  not  interfere, 
and  the  matter  improperly  brought  before  the  jury  is  of  a  ma- 
terial character,  the  appellate  court  miy  reverse  the  judgment; 
but  it  is  not  every  violation  of  the  rules  governing  tlie  discus- 
sion of  causes  before  the  jury  that  will  entitle  the  complaiuing 
party  to  have  the  verdict  set  aside;  foi',  if  the  statement  be  an 
unimportant  one,  or  one  not  likely  to  wrongi'uUy  influence  the 
jury,  the  verdict  will  be  upheld." 

This  is  the  rule  declared  and  enforced  in  Comhs  v.  Stati\  T5 
Ind.,  215;  in  Morrison  v.  ^SUito,  7t>  Ind.,  3:}5;  in  Lj>ps  v.  S((ti<', 
102  Ind.,  539;  S.  C,  5  Am.  Cr.  II.,  517;  and  in  Anderson  v. 
State,  104  Ind.,  407. 

This  case  diifers  very  materiall}'  from  the  cases  of  Broio  v. 
State,  103  Ind.,  133,  and  JiessMe  v.  State,  lol  Ind.,  85,  for  in 
those  cases  the  counsel  did  not  simply  draw  a  wrong  inference 
from  the  facts,  or  erroneously  state  a  proposition  of  law,  but  in 
one  of  these  cases  the  counsel  assumed  the  position  of  a  witness 
by  stating  very  material  facts,  and  in  the  other  the  counsel  not 
only  usurped  tlie  place  of  a  witness,  for  he  also  singled  out  and 


SHULAR  V.  THE  STATE. 


521 


not  to  be 
tlie  state- 
'n  by  the 
vhcre  the 

of  a  por- 
and  tliei'e 
•ositiou  of 
)io|)or  fur 
on;,^li  they 
stify  a  re- 
u  fair  dc- 
'as  passed 

evidence 

v'o  said : 
which,  the 
ig  that  lie 
'  gave  it  a 

ovideiice, 
isel  go  he- 
l  matters, 

interfere, 
s  of  a  nia- 
udgiiient; 
he  discus- 
n|)laiiiing 
out  bo  an 
uence  the 

.  Shifty  75 

3  V.  Stttt,', 

xlet'son  V. 

f  Brow  V. 
!^5,  for  in 
inference 
LU',  but  in 
a  witness 
unsel  not 
I  out  and 


assaileJ  one  of  the  jurors.  There  is  still  anothei  distino-uishinjr 
feature,  and  that  is  this:  here  the  court  correctly  stated  the 
law  to  the  jury,  saying  that  the  question  was  not  Ijefore  them, 
and  must  not  be  discussed,  while  in  the  cases  referred  to  the 
court  declined  to  interfere,  and  neither  corrected  nor  rebuked 
the  counsel. 

The  other  phase  of  the  question  presented  by  the  assignment 
in  the  motion  for  a  new  trial,  that  the  state's  counsel  was  guilty 
of  misconduct,  is  of  a  somewhat  different  character  from  that 
just  discussed,  but  still  we  think  that  it  falls  within  the  same 
general  principles.  Tiie  facts  upon  which  the  alleged  improper 
statement  of  the  counsel  for  the  state  was  based  were  collateral 
to  the  principal  and  controlling  questions  in  the  case,  and  the 
statement  was  made  in  response  to  a  statement  of  defendant's 
counsel.  AVe  do  not  think  that  it  can  be  justly  said  that  the 
statement  of  the  prosecuting  attorney  upon  a  merely  collateral 
matter  worked  an  injury  to  the  substantial  rights  of  the  appel- 
lant, and  it  is  oidy  in  cases  where  there  is  a  substantial  injury 
to  the  appellant  that  we  can  reverse.  As  was  said  in  Movrisoti 
V.  State,  supra: 

"If,  for  every  transgression  of  the  prosecuting  attorney  be- 
yond the  bounds  of  logical  or  strictly  legal  argument,  the  de- 
fendant could  claim  a  new  trial,  few  verdicts  could  stand,  and 
the  administration  of  criminal  justice  would  become  impracti- 
cable." 

"What  was  said  in  Combs  v.  State,  sujva,  bears  so  directly 
upon  the  question,  as  we  here  encounter  it,  that  we  quote  from 
the  opinion  in  that  case: 

"If  every  immaterial  assertion  or  statement  which  creeps 
into  an  argument  were  to  be  held  ground  for  veversal,  courts 
would  be  so  much  occupied  in  criticising  the  addresses  of  advo- 
cates as  to  have  little  time  for  anything  else.  Common  fair- 
ness recjuires  that  courts  should  ascribe  to  jurors  ordinary 
intelligence,  and  not  disregard  their  verdicts  because  counsel, 
during  the  argument,  may  have  made  some  general  statements 
not  supported  by  c'idenco.  Of  course,  there  may  bo  cases 
wliore  the  matters  stated  ai'e  so  weiglity  and  important  as  to  do 
the  accused  injury,  and  whenever  this  is  so  the  appellate  court 
should  not  hesitate  to  adjudge  a  reversal.'' 

In  this  instance  it  is  evident  from  the  character  of  the  coun- 


— fi 


522 


AMERICAN  CRIMINAL  REPORTS. 


sol's  statement,  from  the  matter  upon  which  it  was  1):is;m1,  and 
from  the  cause  which  called  it  out,  that  we  ought  not  to  reverse 
the  judg-ment  of  the  trial  court. 

"We  liave  given  the  evidence  a  careful  study,  and  are  con- 
vinced that  the  defendant  was  convicted  of  the  lowest  grade  of 
homicide  that  the  lav*  and  the  evidence  will  wavrant.     There 
is  evidence  strongly  tending  to  show  that  the  killing  was  not 
only  malicious,  but  that  it  was  al.;o  premeditated.     The  first 
quarrel  between  the  ai)pellant  and  the  decease  1  took  place 
quite  a  long  interval  of  time  before  the  fatal  shot  was  llred, 
and  there  is  evidence  strongly  tending  to  show  that  the  aj)- 
pellant,  after  leaving  tlie  place  where  the  first  (piarrcl  occurred, 
returned  for  the  i)urpose  of  renewing  it,  and  of  doing  tiie  de- 
ceased great  bodily  harm,  if  not  of  taking  his  life.     If  the  evi- 
dence adduced  by  the  state  was  credited  by  the  jury,  and  to  us 
it  seems  far  more  credible  tiian  that  adduced  on  the  part  of  the 
defense,  the  verdict  of  manslaughter  is  a  mild  one.  and  was  not 
influenced  in  any  degree  by  the  remark  of  the  prosecutor.  The 
trial  court  should  promptly  check  any  departure  from  fair  de- 
bate, and  if  the  dejjarture  is  a  grave  one,  sternly  rebuke  or,  if 
need  be,  punish  the  counsel;  but  it  does  not  f«)llow  from  this 
that  in  every  instance  where  there  is  a  trans;;Tession  of  the 
rules  that  govern  in  the  argument  of  causes,  there  should  be  a 
reversal.     As  the  cases  to  which  we  have  refei-red  decide,  the 
appellate  c(>urt  can  only  interfere  wlunu;  substantial  injury  has 
been  done  the  party,  but  the  trial  coui-t  may  and  should  al- 
wa\'s  keep  counsel  within  the  bounds  of  legitimate  argument. 
If  counsel  undertake  to  state  matters  not  in  evidence,  or  to 
state  facts  which  could  not  bo  put  in  evidence,  the  trial  coui't 
shouhl  restrain  them  by  a  quick  and  sharj)  rebuke;  but,  the 
omission  of  the  trial  court  to  do  its  duty,  while  it  may  be  a 
just  reason  for  criticism,  will  not  always  entitle  the  accused  to 
a  judgment  annulling  the  verdict. 

There  was  no  error  in  directing  the  jury,  as  the  court  did  in 
the  fifteenth  insti'uction,  that  in  passing  ui)on  the  credibility  of 
a  witness  they  might  consider  "  his  impeachment  in  any  case 
wheie  ihe  witness  is  found  to  be  successfully  impeached."  ll 
seems  clear  that,  unless  a  witness  is  successfully  impeaciied,  he 
is  not  impeached  at  all.  An  attempt  to  impeach  that  results 
in  a  failure  cannot  be  regarded  as  impairiiig  tho  credit  of  a 


SHULAR  V.  THE  STATE. 


523 


:i>i;'<l,  and 
to  reverse 

are  con- 
^n'iulo  of 
•     There 
was  not 
The  fii-st 
)oJi  place 
^vus  lired, 
t  tlio  ap- 
OGCurred. 
i;^-  tlie  de- 
i"  tlie  evi- 
iind  to  us 
;irt  of  the 
d  was  not 
utor.  The 
111  fair  de- 
>nke  or,  if 
from  this 
on  of  the 
lould  be  a 
ec'ide,  the 
iijiirv  has 
ihoidd  al- 
iri^'unient. 
nee,  or  to 
rial  court 
;  hut,  the 
may  be  a 
ceased  to 

irt  did  in 

lil)ility  of 
any  case 

10(1."      h 

iched,  he 
t  I'esulls 
Jilit  of  a 


witness.  The  court  did  not,  as  counsel  assume,  tell  the  jury 
tliat  they  should  not  consider  evidence  olfered  to  impeach  a 
witness,  but  informed  them  that  in  deciding  upon  the  credibil- 
ity of  a  witness  they  might  consider  his  impeachment,  if  he 
was  found  to  bo  successfully  impeached.  This  was  simply 
alHrming  that  if  the  witness  was  impeached  they  might  con- 
sider that  matter  as  affecting  his  credibility  —  for  the  language 
used  conveys  this  meaning,  and  none  other  — since  an  attempt 
to  impeach  that  is  not  successful  goes  for  nothing;  of  course  it 
is  for  the  jury  to  determine  whether  the  witness  is  impeached, 
as  well  as  to  determine  all  other  matters  affecting  his  credi- 
bility; but  there  is  nothing  in  the  instruction  that  conflicts 
with  this  princii)le.  The  matter  of  the  credibility  of  witnesses 
was  not  taken  from  the  jury. 

It  is  contended,  with  much  ability,  by  appellant's  counsel, 
tiiat  the  judgment  shouhl  be  reversed  for  the  reason  that  the 
jury  wore  guilty  of  misconduct,  but  the  question  cannot  be 
ccmsidered  by  us  because  it  is  not  i)roperly  ])resentod  by  the 
record.  The  record  shows  that  the  defendant  liled  allidavits 
with  his  motion  for  a  new  trial;  that  the  state  asked  leave  to 
fde  counter-atiidavits,  and  to  subpoena  the  jurors  who  tried  the 
case;  that  the  defendant  unsuccessfully  objected  to  granting 
the  request  of  the  state;  that  the  court  hoard  the  evidence 
upon  the  motion  at  the  appointed  time;  that  a  stenographer 
was  appointed  to  take  the  testimony;  that  the  investigation 
occnpioid  several  days;  and  that  the  court,  after  "  being  duly 
advised,"  overruled  the  appellant's  motion.  Is'o  alliditvits  are 
in  the  record  except  those  liled  witli  appellant's  motion  for 
a  new  trial,  nor  is  the  evidence  given  on  the  hearing  of  that 
motion  in  the  record.  This  statement  of  the  condition  of  the 
record  shows  that  there  i-!  nothing  more  than  the  altidavits  on 
one  side  of  the  controversy  before  us,  and  we  cannot  presume 
that  the  statements  made  in  them  were  not  completely  met 
and  overthrown  by  the  evidence  adduced  by  the  state.  On 
the  contrary,  we  are  imperatively  required  to  pi esuine  in  favor 


of  the  ruling  of  the  trial  court. 


Judgment  a^irmm. 


Note. —  Both  in  civil  {ind  criminal  cases  it  is  the  imperative  duty  of  the 
trial  court  to  see  to  it  that  couiiff»'l  kcc|)  within  the  limits  oi'  fair  and  legiti- 
i;iute  debute  upon  the  facts  given  in  evidence,  and  such  inference.i  as  may 


I  'i*;'.'  ■■; ! 


»i  ^; 


II 


1 

! 

< 

1;       '; !  ■ 

m 

1 

il 

I       '  -'^ 

111  :i 

1 .  {>  -#> 


l;^ii 


524 


AMERICAN  CRIMINAL  REPORTS. 


reasonably  be  drawn  from  those  facta;  to  see  that  no  unprovokofl  or  base 
attack  is  made  upon  litigant  or  witness  in  the  cause,  and  above  all,  to  en- 
force that  courtesy  and  decorum  among  attorneys  which  characterize  the 
intercourse  of  gentlemen  in  private  life,  and  wiiicii  is  due  to  an  iinpartial 
adniinislration  of  the  law  from  ils  constituted  ministers.  In  the  case  of 
Brow  V.  The  State,  108  Ind.,  133,  referred  to  in  the  above  opinion.  Milch- 
ell,  C,  J.,  delivering  the  opinion  of  the  court,  reversing  tlie  case,  said; 

"  A  bill  of  exceptions  in  the  record  discloses  that  during  tlie  closing  argu- 
ment an  exception  was  taken  by  the  defendant  to  the  action  of  the  court  in  re- 
fusing on  his  motion  to  instruct  tlie  jury  to  disregard  certain  remarks  made  by 
the  prosecuting  attornej'  in  his  addresi  to  the  jury.  The  statcnionts  objectwl 
to  and  the  exception  are  stated  as  follows :  '  That  saloon-keepers  always  Imd 
a  gang  organized  to  swear  them  through,  and  that  i\w  jury  should  not  lii-- 
lieve  a  saloon-keeper  under  oath ;  that  oiUy  a  short  time  ago  a  saloon-keeper 
had  sold  liquor  to  a  man  and  nuule  him  drunk,  and  he  froze  to  death ;  that 
all  saloon-keepers  were  alike,  and  that  they  would  swear  to  lies ;  that  lie 
knew  personally  the  saloon-keeper  in  this  case,  and  that  ho  was  guilty  of 
this  and,  he  was  sure,  of  other  crimes;  that  juries  were  too  much  in  the 
habit  of  letting  rum-sellers  go,  and  this  thing  nuist  stop;  that  only  a  short 
time  ago  a  saloon-keeper  down  in  Otterbein,  in  this  very  county,  sold  litpior 
to  a  nuui  and  he  froze  to  death,  and  if  the  defendant  wiis  acquitted  he 
would  go  and  do  the  same  thing.'  Defendant,  by  his  counsel,  thereupon 
objected  to  all  of  such  statements,  and  defendant  moved  the  court  to  re- 
strain counsel,  and  that  the  jurj'  be  instructed  to  disregard  such  remarks, 
but  the  court  passed  the  objection  without  ruling  thereon;  to  which  action 
of  tiie  court  the  defendant  at  the  time  excepted. 

"  These  remarks,  and  the  action  of  the  court  thereon,  were  set  out  in  the 
written  evidence,  and  sissigned  as  one  of  the  grounds  for  a  new  trial. 

"Whatever  may  be  said  concerning  the  jjropriety  of  so  much  of  the  fore- 
going speech  as  refers  to  j^ersons  engaged  in  like  business  with  that  of  the 
defendant  as  a  class,  or  the  reference  to  the  case  where  liquor  had  been  sold 
to  a  man  who  became  drunk,  and  was  afterwards  frozen  to  death,  that  part 
of  it  in  wSiicli  the  staf/s  attorney  said  '  that  he  knew  personally  the  saloon- 
keeper in  this  case,  and  that  he  was  guilty  of  this  and,  he  was  sure,  of 
other  crimes,'  was  such  a  palpable  abuse  of  the  privilege  of  counsel  as, 
without  a  disregard  of  all  rules  governing  the  fair  administration  of  justice, 
cannot  be  excused.  The  defendant,  as  was  his  right,  contested  the  (juestion 
uf  his  guilt.  In  this  contest  it  was  incumbent  on  the  state  to  establish  its 
accusation  against  him  by  evidence  admitted  through  the  legitimate  chan- 
nel. It  had  no  right  to  ask  for  a  conviction  uiwu  assertion  or  evidence 
from  any  source  not  thus  admitted.  Upon  the  evidence  as  it  stwjd  it  was 
not  only  a  fair  question  of  debate,  but  a  question  for  fair  debate,  whether 
the  defendant's  guilt  was  made  out,  and  it  was  in  the  highest  degree  unfair 
that  the  attorney  for  the  state  put  the  weight  of  his  own  personal  knowl- 
edge into  the  scale,  in  the  manner  set  forth,  to  overbalance  the  defendant's 
case.  The  constitution  guaranties  to  every  person  accused  of  crime  the 
right  to  met^t  the  witnesses  against  him  '  face  to  face,'  but  this  guaranty 
stands  for  nothing  if,  after  the  evidence  is  closeil,  the  state  may  avail  itself 
of  the  personal  knowledge  of  the  prosecutor  concerning  the  defendant's 
guilt,  not  only  of  that,  but  other  crimes  conveyed  to  the  jury,  accompanied 


SHULAR  r.  THE  STATE. 


59: 


okofl  or  hnse 
'o  all,  to  en- 
mctorizo  the 
an  iiii[)aitiiil 
«  the  case  of 
nion,  Mitch- 
S  said : 
•losiiij;  argu- 
e  court  in  re- 
irksniadehy 
ntsobjcctfd 
i  always  liad 
lould  not  Ik'- 
ii(M)n-kfe|)(>r 
death:  that 
ies;  that  he 
k'as  guilty  of 
nuich  in  the 
only  a  short 
',  sold  licjiior 
ic(|uitted  he 
1,  thereupon 
court  to  rt'- 
3h  remarks, 
vhich  action 

3t  out  in  the 

trial. 

of  the  fore- 

that  of  the 
id  been  aold 
li,  that  part 
'  the  saloon- 
.•as  sure,  of 
counsel  08, 
II  of  justice, 
ho  (juestion 
'stablish  its 
mate  chan- 
>r  evidence 
tood  it  was 
;e,  whether 
gree  unfiur 
iinl  knowl- 
lefondant's 

crime  the 
I  guaranty 
avail  itself 
lefendant's 
coiupunied 


with  other  statements  ingeniously  contrived  to  excite  their  prejudice  against 
him.  If  a  conviction  is  had  in  any  case,  it  is  essential  that  it  shall  have 
been  secured  according  to  the  facts  in  the  case  legally  produced  to  the  jury 
agreeably  to  established  rules  in  judicial  proceedings,  and  not  by  methods 
wliich  afford  the  accused  no  opportunity  of  meeting  the  assertions  made  by 
any  one  claiming  to  have  personal  knowledge  of  his  character  or  guilt." 

In  Hcripps  v.  Reilly,  35  Mich.,  371,  the  attorney  for  defendant  was  per- 
niittoil  to  read,  in  his  statement  to  the  jury,  several  articles  from  news- 
paitei-s,  which  the  court  afterwards  excluded  when  ofVered  in  evidence,  and 
the  court  stated  in  his  charge  to  the  jury  that  these  should  be  withdrawn 
frmi  their  consideration,  and  should  be  laid  out  of  view  in  their  delibera- 
tions upon  the  case.  Mr.  Justice  Graves,  in  delivering  the  opinion  of  the 
court,  after  stating  the  facts  said:  "The  question  is,  whether  the  practice 
wliich  was  here  allowed  in  the  opening  address  was  correct,  and,  if  not, 
whether  the  advice  quoted  from  the  charge  cured  the  error,  and  in  case  it 
did  not,  then  whether  it  is  competent  for  this  court  to  revise  the  proceed- 
ings. 

"  It  is  a  chief  duty  of  the  trial  judge  to  secure  fair  play  to  litigants,  and,  so 
fur  as  i)racticable,  to  shape  the  order  and  course  of  proceedings  in  such  a 
way  that  neither  party  will  be  put  to  a  disadvantage  not  due  to  his  case  or 
its  mode  of  management  by  his  counsel.  The  rules  of  the  court,  and  what 
is  called  the  course  of  the  court,  have  their  origin  in  the  i)urpose  to  secure 
fairness  in  legal  controversies,  and  the  order  of  business  and  the  regulated 
succession  of  steps  at  trials,  have  the  same  origin.  ...  p.  391.  There 
is  no  occasion  for  dwelling  on  this  part  of  the  case  after  what  has  been  said. 
The  practice  pursued  was  wrong,  and  the  error  was  not  materially  allevi- 
ated by  the  charge ;  .  .  .  the  course  of  fair  and  settled  practice  was 
violated  to  the  prejudice  of  the  plaintitT  in  error,  and  it  is  not  a  satisfactory 
answer  to  say  that  the  court  went  as  far  as  practicable  afterwards  to  cure 
tiie  mischief,  so  long  as  an  inference  remains  that  the  remedy  applied  by 
the  court  was  not  adequate.  And  there  is  no  doubt  of  the  right  of  this 
court  to  revise  in  such  a  case  as  this." 

In  Tucker  v.  Henniker,  41  N.  H.,  317,  the  court  say:  "  It  is  irregular  and 
illegal  for  counsel  to  comment  upon  facts  not  proved  before  the  jury  as  true, 
aii<l  not  legallj-  conipetent  and  admissible  as  evidence.  The  counsel  repre- 
sents and  is  a  substitute  for  his  client;  whatever,  therefore,  the  client  may 
do  in  the  management  of  his  cause,  may  be  done  by  his  counsel ;  the  largest 
and  most  liberal  freedom  of  speech  is  allowed,  and  the  law  protects  him  in 
it.  .  .  .  To  bis  freedom  of  speech,  however,  there  are  some  limita- 
tions. His  manner  must  be  decorous.  All  courts  have  power  to  protect 
themselves  from  contempt,  and  indecency  in  words  or  sentiments  is  con- 
tempt. This  is  a  matter  of  course  in  courts  of  civilized  communities,  but 
not  of  form  merely ;  for  no  court  can  command  from  an  enlightened  jmblic 
that  respect  necessary  to  an  efficient  administration  of  the  law,  without 
maintaining,  in  its  business  proceedings,  that  courtesy,  dignity  and  purity 
which  characterizes  the  intercourse  of  gentlemen  in  private  life. 

"  When  coimsel  are  permitted  to  state  facts  in  argument,  and  to  comment 
on  them,  the  usage  of  courts  regulating  trials  is  departed  from,  the  laws  of 


|: 

t. 

i''   ■ 

1 

mi  ■ 
ii¥i 

1 

H'^i 

I 

1 
1 . 

j'^; 

■j  ■  ;^  ■. 

AMERICAN  CRIMINAL  REPORTS. 


evidence  are  violated,  and  the  full  benefit  of  trial  by  jury  is  denied.  It 
may  be  said,  in  answer  to  these  views,  tliat  the  statements  of  counsol  are 
not  evidence;  that  the  court  is  bound  so  to  instruct  the  jury,  and  tliat  thoy 
are  sworn  to  render  tlieir  verdict  only  according  to  evidence.  All  tliis  is 
true ;  yet  the  necessary  effect  is  to  bring  the  statements  of  counsel  to  lu^ar 
upon  the  verdict  with  more  or  less  force,  accordinj;  to  circumstances,  and 
if  they  in  the  slightest  degree  influence  the  fliuling,  the  law  is  violated, 
and  the  purity  and  impartiality  of  tlie  trial  tarnished  and  weakened. 

"If  not  evidence,  then  manifestly  the  jury  have  nothing  to  do  with 
them,  and  the  advocate  has  no  right  to  make  them.  It  is  unreasonable  to 
believe  the  jury  will  entirely  disregard  them.  They  may  struggle  to  disre- 
gard them;  they  may  think  they  have  done  so,  and  still  bo  led  involuntarily 
to  shape  their  verdict  under  their  influence." 

See,  also.  Smith  v.  People,  5  Am.  Cr.  R.,  015. 


1 1"  i 


l.'U'f. 

,-.         '         ■           "? 

:    .>        ■  i 

I  I  A: 

,:i.^ 

.'...;•.* 

■'!.' 

f'.-" 

-  /i 

f{\- 

iir      -i 

I   ,                :■ 

State  v.  Banks  and  ANOTnER. 

(78  Me.,  490.) 

Practice:  Evidence  —  Argument  of  prosecutor  —  Failure  of  defendant  to 

testify. 

Trial  —  Argument  op  prosecuting  attorney  —  Failure  of  defendant 
TO  TESTIFY. —  It  is  not  competent  for  the  county  attorney,  in  the  trial 
of  a  criminal  prosecution,  to  urge,  in  argument  to  the  jury,  that  the 
respondent  did  not  take  the  stand  and  deny  tlie  testimony  introduced 
by  the  government. 

On  exceptions  by  respondents  from  Supreme  Judicial  Court, 
Sagadahoc  County. 

Complaint  for  "using  in  Winnegance  creek  a  net  of  not  less 
than  six  inches  mesh,"  in  violation  of  chapter  403,  Private  and 
Special  Laws,  1SS.5.  The  jury  returned  a  verdict  of  guilty; 
and  the  respondents  alleged  exceptions. 

K  J.  Bide?',  county  attorney,  for  the  state. 
C.  W.  Zarmbee,  for  the  defendants. 

Virgin,  J.  This  is  a  complaint  for  "  using  in  "Winnegancc 
creek  a  net  of  not  less  than  six  inches  mesh,"  in  violation  of 
chapter  4G3,  Private  and  Special  Laws,  1885.  A  witness  for 
the  prosecution  testified  that  he  saw  the  net  when  it  was  taken 
out,  and  was  lying  on  the  ice,  and,  on  measuring  the  mesh, 
found  it  to  be  only  three  inches.    Neither  of  the  defendants 


-iv; 


STATE  V.  BANKS. 


527 


denied,    it 

counsel  are 

n'l  that  tlu.y 

All  this  is 

unsul  to  iMur 

istances,  and 

is  violated, 

kenod. 

to  do  with 

reasonable  to 

ggle  to  disie- 

iuvoluntarily 


defendant  to 


'  DEFRXDANT 

,  in  the  trial 
>ry,  that  the 
r  introduced 


3ial  Court, 

)f  not  less 
fivate  and 
of  guilty; 


nnegance 
:)lation  of 
tness  for 
yas taken 
lie  mesh, 
sfendants 


offered  to  testify.  The  county  attorney  urged  in  argument  to 
the  jury  that  the  defen<lants  sat  in  court,  heard  the  testimony 
relating  to  the  size  of  the  mesh,  and  did  not  take  the  stand  to 
deny  it.  In  his  charge  to  the  jury,  the  presiding  justice,  after 
calling  their  attention  to  the  above  facts,  and  instructing  them 
in  substance  that  the  del'endants'  silence  was  not  evidence  of 
their^ guilt;  that  the  jui-y  must  act  without  the  defendants' 
testimony;  that  in  weigiiing  the  evidence  as  a  whole  it  might 
make  a  great  difference  whether  they  testilied  or  not;  that 
they  might  own  the  mesh  to  have  been  less  than  six  inches 
when  it  was  not;  and,  on  the  other  hand,  they  might  deny  it, 
and  then  that  would  be  a  fact  to  act  upon,  but  that  the  jury 
had  not  that  fact"  before  them, —  proceeded  as  follows:  "So 
that  the  county  attorney  was  perfectly  justified  in  calling  j'our 
attention  to  the  absence  of  any  evidence  on  their  part,  as  wit- 
nesses upon  the  stand,  that  their  net  was  not  what  Mr.  Frisbee 
described  it  to  be.  Now,  that  is  as  far  as  the  law  allows  you 
to  go." 

Our  oi)inion  is  that  the  learned  judge  erred  in  allowing  the 
jury  to  go  thus  far.  In  ISGi,  for  the  first  time,  a  person 
charged  with  commission  of  a  criminal  offense  was  made,  "  at 
his  own  request  and  not  otherwise,  a  competent  witness."  St. 
180-t,  ch.  2S0.  After  this  statute  took  effect,  county  attorneys, 
where  the  accused  did  not  elect  to  testify,  were  allowed  in  argu- 
ment to  comment  on  the  fact  to  the  jury.  Slate  v.  Bartlett, 
55  Me.,  2:20;  S/afc  v.  Lnwrcnce^  57  Me.,  574:;  Slate  v.  Cleaves, 
59  Me.,  298.  This  practice  continued  for  fifteen  years;  and, 
while  it  operated  favorably  for  innocent  persons,  it  resulted 
disastrously  to  the  guilty  who  would  not  add  perjury  to  the 
crime  charged.  Thereupon  the  legislature,  believing  that  the 
constitutional  provision  which  declares  that  "  the  accused  shall 
not  be  compelled  to  furnish  or  give  evidence  against  himself," 
(Declaration  of  Rights,  §  5),  like  the  rain  descended  upon  the 
innocent  and  guilty  alike,  and  looking  to  a  more  careful  pro- 
tection of  this  right,  enacted  that  "  the  fact  that  the  defendant 
in  a  criminal  prosecution  does  not  testify  in  his  own  behalf 
shall  not  be  evidence  of  his  guilt."  St.  1879,  ch.  92,  §  6;  Rev. 
St.  ch.  131,  §  19.  AVe  think  the  intent  of  the  statute  is  that 
the  jury,  in  determining  their  verdict,  shall  entirely  exclude 
from  their  consideration  the  fact  that  the  defendant  did  not 


hi', 

~,     ■' 

n'y 

^ 


m 


mf 


'V  '       ■  { 


h 


w*n 


tl. 


,<». 


52S 


AMERICAN  CRIMINAL  REPORTS. 


elect  to  testify, —  substantially  as  if  the  law  did  not  allow  jiim 
to  be  a  witness.  Com.  v.  Ilarloio,  110  Mass.,  411 ;  Com.  v.  Sri>tt, 
123  Mass.,  241.  This  the  jury  could  not  do  under  tlie  instruc- 
tions. 

The  other  questions  raised  are  settled  in  State  v.  Adnms,  TS 
Me.,  480.  KciK-ptions  suntalncd. 

Peters,  C.  J.,  Danfouth,  LiniiKY,  Foster  and  Haskell,  JJ., 
concurred. 

Note. —  Dcfe»(hnit  as  a  ivihiess. — The  code  (section  lOfl,  Crim.  Cddo, 
as  amended  October  25,  1880)  makes  the  accused  in  all  criminal  trials  a 
competent  witness  at  his  own  option;  and  when  he  avails  himself  of  this 
privilege  he  is  subject  to  the  same  rules  of  cross-examination  as  any  otlitr 
witness.    Stale  of  Oregon  v.  Abrams,  11  Or.,  169. 

While  the  prosecution  is  not  allowed  to  comment  on  the  more  ncf^lect  of 
the  accused  to  testify  in  his  own  behalf,  yet,  if  he  does  exercise  his  privil('<;e 
by  taking  the  witness  stand,  his  testimony  is  precisely  like  any  other  witness'. 
State  V.  Anderson.  89  Mo.,  313. 

Under  the  statute  of  Jlissouri  (section  1918,  Revision  of  1879).  the  cross- 
examination  of  an  accused  person,  testifying  in  his  own  behalf,  nuist  l)e 
strictly  limited  to  those  matters  referred  to  in  liis  direct  examination,  and 
if  extended  bej'ond  that  will  justify  reversal.  State  v.  Chainberluhi,  89  Mo., 
139. 

On  indictment  for  a  crime,  where  the  defendant  offers  himself  as  a  wit- 
ness, he  may  be  impeached  as  any  other  witness,  except  tliat  on  his  cross- 
examination  he  can  only  bo  (piestioned  as  to  such  matters  as  he  testified  to 
in  his  examination  in  chief.     The  State  i'.  Bulla,  89  ilo.,  59,1. 

Waiver  of  constitutional  privilege  —  Cross-e.vaniinat ion. —  A  defendant 
who  voluntarily  takes  the  stand  and  broadly  denies  the  crime  thus  waives 
his  constitutional  privilege,  and  may  be  cross-examined  on  all  facts  relevant 
and  material  to  the  issue.     Thomas  v.  The  State,  10:3  Ind..  419. 

In  City  of  Topvka  v.  Mijers,  35  Kan.,  5.")4,  the  supreme  court  revei'sed  the 
case  on  account  of  the  misconduct  of  the  prosecuting  attorney  in  using  the 
following  words  in  .iddressing  the  jury:  "If  the  defendant  is  not  guilty, 
why  did  he  not  take  the  stand?  He  could  have  easily  proven  that  he 
did  not  keep  the  place." 

Cross-c.vamination  and  constitutional  privilege. —  In  Thomas  v.  The  State, 
103  Ind.,  419,  the  di'fendant  having  taken  the  witness  stand  in  his  own  be- 
half, denied  that  he  had  written  either  letter  No.  13  (one  of  a  series  of  letters 
purporting  to  have  been  written  by  the  defendants),  or  the  address  upon 
the  envelope,  and  he  also  denied  that  he  mailed  or  caused  the  letter  to  be 
mailed.  Thereupon  the  prosecuting  attorney  on  cross-examination  placed  in 
his  hands  the  letters  received  by  one  May  Stewart,  and  asked  liim  to  ex- 
amine them  and  state  whose  handwriting  they  were  in.  The  defendant, 
the  appellant,  objected  to  this  for  the  reason  that  these  letters  were  not 
papers  in  the  case  and  had  not  been  referred  to  in  the  examination  in  chief, 
and  that  a  refusal  to  answer  might  be  prejudicial  to  him  with  the  jury  and 


GRAHAM  V.  THE  PEOPLE. 


529 


illow  liiin 
n.  V.  Srotf, 
0  instriic- 

attained. 

KELL,  JJ., 


im.  Cndo, 

al  trials  a 

self  of  this 

i  any  otlier 

nof^lwt  of 
is  privilc^re 
er  witness'. 

.  tlu'  cross- 
if,  must  l)u 
lation,  anil 
(m,  8«iM()., 

If  as  a  Wil- 
li liis  cioss- 
tostilied  to 

defendant 
lius  waives 
ts  relevant 

versed  the 

"sin},'  the 

lot  Kiiilty, 

n  that  he 

TlicSfdh', 
is  own  bc- 
i  of  letters 
ress  upon 
•tter  to  he 
placed  in 
ini  to  ox- 
efendant, 
were  not 
I  in  chief, 
jury  and 


that  nn  answer  might  criminate  him.  He  excepted  to  the  ovonnlinK  by 
the  court  of  all  his  objections,  and  without  giving  any  further  cause  refused 
to  answer.  He  was  not  compelled  to  answer.  Had  he  not  becc.ine  a  wit- 
ness in  his  own  beiialf  he  could  not  have  been  coinpelleil  to  testify,  and 
such  (juestions  could  not  liave  been  proi)ouiided  to  him.  In  tlie  case  of  The 
Common ivpnlth  v.  Nichols,  114  Mass.,  285,  it  is  said :  "  But  if  he  (defendant) 
I)Uts  himself  on  the  stand  as  a  witness  in  liis  own  behalf,  and  testiHes  that 
he  did  not  commit  the  crime  imputed  to  him.  lie  tliereby  waives  his  consti- 
tutional privilege,  and  renders  himself  liable  to  be  cross-examined  upon  all 
facts  relevant  and  material  to  that  issue,  and  cannot  refuse  to  testify  to  any 
facts  which  would  be  competent  evidence  in  the  case,  if  proved  by  other 
witnesses."  In  this  regard,  see,  also,  The  State  v.  Oher,  T^'l  N.  H.,  4,")9:  Con- 
nors V.  The  I'eoplc,  50  N.  Y.,  240.  The  prosecutor  had  the  undoubted  right 
to  cross-examine  the  defenilant  upon  ail  facts  relevant  and  material  to  the 
issue  and  within  the  scope  of  a  legitimate  cro.ss-examination.  And  the 
court  said  tliat  where  a  party  voluntarily  takes  the  witness  stand  and  makes 
a  broad  denial  in  general  terms  or  specifically  of  the  offense  ( liarged,  much 
scope  and  latitude  should  be  allowed  in  the  cross-examination.  It  was  held 
not  error  for  the  prosecuting  attorney  to  propound  such  a  ((uestion  to  the 
appellant,  but  the  court  does  not  decide  the  (juestion  whether  or  not  appel- 
lant could  be  compelled  to  answer  the  question  propounded  to  him  on  the 
ground  of  self-criminaticm.  The  court  on  a  trial  for  murder  may  instruct 
the  jury  that  in  giving  effect  to  evidence  of  the  defendant,  where  lie  testi- 
Hes in  his  own  belialf,  they  should  (Miisiiler  the  relation  and  situatitm  under 
which  he  gives  his  evidence,  the  etfcct  of  the  result  of  tlie  trial  on  him,  and 
the  temptations  which  would  influence  his  testimony,  and  the  consequent 
weight  tu  be  given  thereto.     People  v.  O'Xcil,  iu  Cal.,  378. 


Graii.vm  et  at.,  v.  The  People. 

(115  111.,  500.) 

Practice:  Failnretonhjeet  to  ini'mnpefent  evidence — Mot  ion  fornew  trial — 

Hill  of  v.vceptions, 

1.  Incompetent  evidenik  — Failure  to  ob,iect  to.— The  admission  of 
incompetent  evidence  in  a  criminal  case,  if  not  objected  to  at  the  time, 
cannot  afterwards  be  made  the  ground  of  an  objection.  .  I  fortiori  so, 
where  the  party  against  whom  it  is  offered  cross-examines  as  ta  such 
evidence,  and  introduces  other  evidence  in  explanation  tliiredl. 

3.  Motion  foij  new  tiual  must  appear  in  bill  ok  excicptkins.— In 
order  to  obtain  a  reversal  and  new  trial  on  the  ground  that  the  ver- 
dict is  against  the  cvidente,  a  motion  therefor  must  have  been  made  in 
the  trial  court,  and  an  excejition  to  the  order  den3ing  it,  which  must 
appear  in  the  bill  of  exceptitms;  and  then  a  verdict  will  be  reversed  only 
when  the  court  of  appeal  can  see  that  it  is  influenced  by  passion  or 
prejudice.' 


Vol.  VII  — 34 


•  See  note. 


ill' 


m- 


530 


AMERICAN  CRIMINAL  REPORTS. 


Writ  of  error  to  the  Criminal  Court  of  Cook  Count  v,tho 
Hon.  IloUin  S.  Williamson,  Judge,  presiding. 

S.  R.  Keough  and  Messrs.  Snowkook,  Johnson  tO  Graij,  for 
the  plaintiffs  in  error. 

George  Hunt,  attorney-general,  for  the  people. 

TuNNiCLiFF,  J,  The  plaintiffs  in  error,  Robert  Graliam  and 
Hugh  McCue,  were  convicted  in  the  criminal  court  of  Cook 
county  of  the  crime  of  robbing  the  prosecutor  of  liis  watch. 
On  the  trial  the  following  question  was  asked  the  prosrcuting 
witness,  viz.:  "  Have  you  been  approached  by  anybody  in  the 
interest  of  these  defendants,  and  have  you  taken  any  nionev 
to  settle  this  case?"  to  which  he  made  the  following  answer: 
"Yes,  sir;  I  took  $25  from  Mr.  Hemingway,  tlio  uncle  of  Gni- 
ham,  in  payment  of  my  watch,  as  I  supi)osed.  The  watch  was 
not  mine.  It  belongs  to  another  man,  who  left  it  with  mc  as 
security  for  a  bill,  and  I  was  wearing  it  that  night.  He  slmU 
for  me,  and  wanted  to  settle  the  case."  Counsel  lor  plaintitrs 
in  error  urge  that  this  evidence  was  incoini)otent,  and  calculated 
to  prejudice  their  clients  with  the  jury.  In  this  we  fully 
agree  with  them;  bu*"  an  examination  of  the  record  discloses 
that  there  was  no  objection  made  or  exception  taken  to  its  in- 
troduction. On  the  contrary,  counsel  ci'oss-examined  the  wit- 
ness concerning  the  same  matter,  and  als(j  introduced  other 
testimony  on  behalf  of  plaintiffs  in  error  in  regard  thereto. 
But,  having  failed  to  make  any  objection,  and  thereby  obtain 
a  ruling  of  the  court  as  to  tiie  admissibility  of  the  testimony, 
and  take  an  exception  to  its  decision  if  adverse  to  them,  we 
are  precluded  from  examining  the  question.  Had  objection 
been  made,  the  court  would  have  doubtless  excliuled  it.  As 
was  said  by  this  court  in  2r<;Klnney  v.  Pcnph;^  2  Crilm.,  550: 

•' A  prisoner  on  trial  under  our  laws  has  no  right  to  stand 
by  and  suffer  irregular  proceedings  to  take  place,  and  then  ask 
to  liave  the  proceedings  reversed  on  error  on  account  of  such 
irregularities.  The  law,  by  furnishing  him  with  counsel  to  de- 
fend him,  has  placed  him  on  the  same  platform  with  all  other 
defendants;  and  if  he  neglects  in  proper  time  to  insist  on  his 
rights,  he  waives  them." 

To  the  same  effect  are  Bulliner  et  al.  v.  People,  95  111.  394, 
and  Perteet  v.  People,  70  id.,  171. 


:?ountv,  tho 


'-  Gm>j,[ov 


iraliain  and 
urt  of  Cook 
I  his  watch, 
prosrcuting 
body  in  the 
any  money 
ng  answer: 
nclo  of  Gra- 
0  watch  Wiis 
with  nie  as 
it.     lie  sent 
)!•  phiint  ill's 
d  calcuhited 
is   we  fully 
rd  discdoses 
en  to  its  in- 
ned  the  wit- 
luccd  otlier 
ird  thereto, 
reby  obtain 
3  testiinojiy, 
^o  them,  we 
d  objection 
ded  it.     As 
ihn.,  550: 
ht  to  stand 
lul  then  ask 
unt  of  sucii 
unsol  to  (lo- 
th all  other 
nsist  on  his 

95  111.  394, 


GRAHAM  V.  THE  PEOPLE. 


531 


The  judgment  is  also  asked  to  bo  reversed  becanso,  as  is 
claimed,  the  jury  found  contrary  to  the  evidence.  Wo  have 
examined  the  evidence  carofully,  and  are  unable  to  say  that 
the  jury  were  not  authorized  to  find  the  verdict  they  did.  The 
only  question  regarded  the  identity  of  the  prisoners',  the  plaint- 
iffs in  error.  The  prosecutiiig  witness  had  known  one  of  them 
personally  for  eight  or  ton  years,  and  the  other  all  of  the  pre- 
ceding winter.  lie  swears  positively  to  their  bein^  the  persons 
who  robbed  him,  and  is  confirmed  by  other  testimony  in  the 
case.  Against  this  plaintiffs  in  error  swear,  on  their  own  be- 
half, to  their  innocence,  and  offer  evidence  of  their  relatives 
and  friends  to  prove  an  alihi  It  was  the  peculiar  province  of 
the  jury  to  weigh  and  consider  the  evidence,  and  judge  from 
the  appearance  of  the  witnesses  on  the  stand,  their  apparent 
honesty,  intelligence  and  candor,  or  the  want  of  it,  what  weight 
should  be  given  to  their  testimony,  and  unless  we  can  see  that 
their  finding  is  so  contrary  to  the  evidence  as  to  impress  the 
court  with  the  belief  that  the  verdict  is  the  result  of  passion 
or  prejudice,  we  ought  not  to  disturb  it. 

But  even  if  the  verdict  was  not  supported  by  the  evidence, 
we  couUl  not  reverse  the  judgment  for  that  reason,  because  the 
bill  of  exceptions  does  not  show  that  any  motion  was  made  in 
the  court  below  for  a  new  trial  on  that  account.  In  fact,  it 
does  not  show  that  any  motion  for  a  new  trial  was  made  at  all. 
Tlie  transcript  shows  an  entry  made  by  the  clerk,  in  his  record, 
of  amotion  for  a  new  trial  by  plaintiffs  in  error,  and  that  it 
was  overruled  and  an  exception  taken.  But  it  does  not  show 
on  what  the  motion  was  based,  and  if  it  did,  it  would  not  be 
sufficient,  as  we  have  repeatedly  held  that  motions  of  this  kind, 
and  the  rulings  of  the  court  thereon,  and  the  exceptions,  if 
any  are  taken,  must  be  preserved  by  bill  of  exceptions,  and 
that  a  mere  entry  of  the  same  by  the  clerk  on  the  record  will 
not  answer  the  purpose.  In  Daniels  v.  Shields,  38  III.,  197,  the 
transcript  showed,  as  a  part  of  the  entry  of  record  in  the  court 
below,  after  the  formal  entry  of  judgment,  the  following: 

"Thereupon  the  said  plaintiff,  by  Parks,  his  attorney,  enters 
his  motion  for  a  new  trial,  which  motion  is  overruled  by  the 
court,  and  to  which  ruling  of  the  court  in  overruling  his  said 
motion  for  a  new  trial,  and  the  judgment  of  the  court  afore- 


r-  ^^ 


532 


AMERICAN  CRIMINAL  REPORTS. 


'.L 


1^ 


fL 


Il'   '? 


i 

t 

said,  tlio  said  plaintiff,  by  his  said  attorney,  then  and  there  ex- 
cepted," etc. 

That  entry  is  the  same  as  in  this  case,  and  it  was  there  held 
that  it  was  insufficient  because  not  embodied  in  a  bill  of  excep- 
tions. See,  also.  Gill  v.  People,  42  111.,  321,  and  James  v. 
Dexter,  113  id.,  654. 

The  judgment  of  the  court  below  must  be  affirmed. 

Note.— In  Johns  v.  Tlie  State,  104  Ind.,  657,  it  is  held  that  where  the 
evidence  is  not  in  the  record,  the  supreme  court  will  not  deem  instructions 
erroneous  if  they  would  have  been  correct  in  any  supposable  state  of  tho 
evidence;  following /fun^  v.  Elliott.  80  Ind.,  245;  Northiveatem  Mutual  Life 
Ina.  Co,  V.  Heinmann,  03  Ind.,  24. 


OoMMONWEALTn  V.   HaSKELL. 

(140  Mass.,  128.) 

Practice  :  Prosecutor  omitting  to  call  witness. 

Calling  witnkss. —  No  rule  of  law  ro(]uires  the  govcrnraont,  rntlior  than 
the  defendant,  to  hold  or  call  a  witness  in  a  criminal  case. 

This  was  an  indictment  charging  the  defendant  with  burn- 
ing a  certain  building  situate  in  Fitchburg.  There  were  three 
trials  of  the  defendant.  In  tho  first  case  one  York,  a  partner 
of  the  defendant,  testified  for  him,  but  not  at  the  subsequent 
trials.  In  his  argument  before  the  jury  the  district  attorney 
argued  and  commented  upon  the  fact  that  York  had  not  been 
called  us  a  witness,  nor  his  deposition  taken,  and  the  defend- 
ant asked  the  court  to  rule  "  that  if  York  was  a  material  wit- 
ness, it  was  the  duty  of  the  government,  rather  than  the 
defense,  to  hold  him  as  a  witness."  This  the  court  refused  to 
do,  as  also  to  instruct  the  jury  "that  the  government  must 
show  a  motive  on  the  part  of  tho  defendant  to  commit  the 
crime,  and  this  beyond  a  reasonable  doubt."  The  court  in- 
structed the  jury  that  "  the  government  must  establish  beyond 
a  reasonable  doubt  every  material  allegation  in  the  indict- 
ment, including  the  felonious  intent  of  the  defendant;  that  the 
government  was  not  required  to  show  the  particular  motive 


THE  STATE  v.  LEABO. 


533 


md  there  ex- 

as  there  held 
bill  of  excep- 
md  James  v. 

tned. 

that  where  the 
lem  instructions 
lie  state  of  the 
em  Mutual  Life 


s. 

pnt,  rnthor  than 
:ase. 

It  with  biirn- 
fe  were  three 
)rk,  a  partnor 
B  subsequent 
riot  attorney 
had  not  been 

the  defend- 
material  wit- 
er  than  the 
rt  refused  to 
nment  must 

commit  the 
he  court  in- 
blish  beyond 
I  tlio  indict- 
mt;  that  the 
lular  motive 


tliat  prompts  an  intelligent  moral  agent  to  commit  a  crime, 
hut  the  apparent  absence  of  motive  is  a  circumstance  to  be 
weighed  in  the  defendant's  favor."  Exceptions  were  taken  by 
the  defendant  to  the  rulings  and  refusals  to  rule. 

Attorney-General,  for  the  commonwealth. 

/.    W.  Corcoran  and  J.  W.  WaM,  for  the  defendant. 

By  the  Coukt.  Whether  any  inference  could  be  fairly 
drawn  from  the  failure  of  the  defendant  to  produce  the  testi- 
mony of  York,  his  partner,  under  the  circumstances  of  the 
case,  was  for  the  jury  to  determine.  The  court  rightly  refused 
to  rule  as  matter  of  law,  as  requested  by  defendant,  that  "  it 
was  the  duty  of  the  government,  rather  than  of  the  defense, 
to  hold  him  as  a  witness,"  There  is  no  law  which  required 
the  government,  rather  than  the  defendant,  to  hold  or  call  him 
as  a  witness.     Exceptions  overruled. 

Note.—  See  contra,  lionkar  v.  People,  3  Am.  Cr.  R,,  79. 


The  State  v.  Leabo. 

(89  Mo.,  247.) 

Practice:  Jury  — Special  venire  —  Prejudice  of  sheriff— Juror,  scruples 
which  disqualify  —  Homicide— Expert  testimony  —  Instructions  —  Mis- 
conduct of  prosecutor. 

1.  Special  venire  under  statute. —  Where  a  motion  for  a  special  venire 

is  made  three  days  liefore  the  day  on  which  the  case  is  set  for  trial,  the 
court  has  no  discretion  to  refuse  it  under  Revised  Statutes  of  Missouri, 
section  2803. 

2.  Prejudice  of  sheriff  —  Coroner — Affidavit  as  evidence. —  Under 

Revised  Statutes  of  Missouri,  section  3894,  which  provides  that  the 
coroner  shall  perform  the  duties  of  the  sheriff  when  it  shall  appear  to 
the  court  that  the  sheriff  is  interested  in  the  suit,  the  court  is  not 
bound  to  take  the  affidavit  of  a  party  as  conclusive  proof  of  prejudice 
alleged  against  the  sheriff. 

3.  Juror  —  Competency  of— Circumstantial  evidence.— It  is  not  error 

for  the  court  to  exclude  from  the  jury  those  who  declare  on  their 
voir  dire  that  they  would  not  convict  of  murder  on  circumstantial 
evidence  alone. 

4.  Evidence  —  Expert  witnesses  —  Post-mortem  examination  ex  parte. 

The  court  did  not  err  in  admitting  experts  to  testify  to  the  condition  in 


-t:  *  \ 


'      ^ 


m 

W^- 

p 

-'■■{.- 

,  ■■■  ( 

534 


AMERICAN  CRIMINAL  TcEPORTS. 


which  a  body  was  found  on  a  spound  post-mortem  examination,  oiglu 
days  after  the  first  was  ma  le,  though  the  second  examinatiun  w  tuj 
made  without  notice  to  the  opposing  party. 

6.  Instructions  to  jury. —  An  instruction  to  the  jury  to  find  the  defend- 
ant guilty  if  he  killed  the  deceased  "  by  choking  and  strangling  lu  r, 
by  fixing,  fastening,  etc.,  Iiishand  about  her  neck  and  throat,  and  then 
by  throwing  her,  so  choked  and  strangled,  into  the  well,"  etc.,  was  held 
sufficiently  explicit  in  specifying  the  means  of  death. 

6.  Misconduct  op  prosecuting  atiorney. — A  judgment  will  not  be  re- 
versed for  error  when  it  occasioned  no  injury  to  the  accused,  although 
the  prosecuting  attorney  commented  on  the  verdict  of  a  former  jury. 

Appeal  from  Bates  Circuit  Court. 

Holcomh  i&  Silvers,  for  appellant. 

B.  G.  Boone,  attorney -general,  for  the  state. 

Hknry,  C.  J.  This  is  the  second  time  this  cause  has  been  in 
this  court  on  defendant's  appeal.  lie  was  tried  and  convicted 
of  murder  of  the  first  degree  at  the  June  term,  1884,  of  the 
Bates  circuit  court,  and  on  appeal  to  this  coui*t  the  judgment 
was  rever.;ed,  and  the  cause  remanded  at  the  October  term, 
1884.  State  v.  Leaho,  84  Mo.,  168.  The  facts  are  detailed  in  the 
opinion  delivered  then,  and  it  is  not  necessary  to  repeat  tliein 
here.  The  evidence  at  the  last  trial  was  not  materially  differ- 
ent from  that  adduced  on  the  former  trial. 

The  November  term,  1885,  of  the  Bates  circuit  court  com- 
menced on  the  2d  day  of  November.  Seven  days  there- 
after both  the  state  and  the  accused  announced  themselves 
ready  for  trial,  and  the  court  ordered  the  shei'iff  to  summon 
one  hundred  and  twenty-five  good  and  lawful  men,  to  be  and 
appear  in  court  at  noon  the  following  Wednesday,  11th  day  of 
November.  On  the  same  day  that  the  sheriff  was  ordered  to 
summon  a  jury  the  defendant  filed  his  motion  for  a  special 
venire,  and  that  the  same  be  summoned  by  the  coroner,  alleg- 
ing that  the  sheriff  was  so  prejudiced  against  him  that  he  would 
not  impartially  serve  the  writ,  and  return  impartial  jurors. 
This  he  verified  by  his  affidavit.  The  court  overruled  his 
motion,  and  this  is  assigned  as  error. 

Section  2802  provides  that  either  party,  in  a  civil  or  criminal 
cause  triable  by  jury,  "shall  be  entitled,  as  of  course,  to  an 
order  for  a  special  venire,  on  motion  made  therefor  three  days 
before  that  on  which  the  case  is  set  for  trial."     The  same  sec- 


THE  STATE  v.  LEABO. 


535 


lation,  t'lVlit 
linatiun  wius 

I  the  doffiiid. 
•angling  in,,.^ 
>at,  an<l  then 
tc,  was  held 

U  not  be  re- 
ed, altliougli 
ormer  jury. 


as  been  in 
convicted 
i84,  of  the 
judgment 
ober  terwi, 
iled  in  the 
peat  them 
illy  differ- 

?ourt  com- 
tys  there- 
hemselves 
)  summon 
to  be  and 
th  day  of 
rdered  to 
a  special 
ler,  alley- 
he  would 
il  jurors, 
•uled   his 

criminal 
se,  to  an 
ree  days 
iime  sec- 


tion gives  the  court  discretion  as  to  tlie  taxation  of  the  costs  of 
such  special  jury.  Regarding  defendant's  motion  as  simply 
one  for  a  special  venire,  it  was  not  made  three  days  before  tliat 
on  which  the  case  was  set  for  trial,  but  on  that  day,  and  tliere- 
fore  the  court  had  a  discretion  to  make  the  order  or  not,  with 
which  this  court  cannot  interfere.  If  it  had  been  made  in  due 
time,  the  court,  under  section  2SU2,  would  have  had  no  discre- 
tion, and  would  have  erred  if  it  had  refused  the  application. 
But  the  motion  also  alleged  that  the  sheriff  .was  so  prejudiced 
against  the  defentlant  that  he  would  not  impartially  summon 
jurors  in  the  case.  Section  3891  provides  tliat  the  coroner  of 
the  county  "shall  serve  and  execute  all  writs  and  precepts,  and 
perform  all  other  duties  of  the  sheriff,  wlien  the  sheriff  shall 
be  a  party,  or  when  it  shall  appear  to  the  court  out  of  which 
the  process  shall  issue,  or  to  the  clerk  thereof,  in  vacation,  that 
the  sheriff  is  interested  in  the  suit,  related  to  or  prejudiced 
against  any  party  thereto,  or  in  anywise  disqualified  from  act- 
ing." The  (piestion  arises  upon  this  section  whether  the  court 
is  bound  to  take  the  affidavit  of  the  party  as  conclusive  proof 
of  the  prejudice  alleged  against  the  sheriff  or  not.  We  think 
not.  The  court  has  some  discretion  in  the  matter,  implied  froni 
the  requirement  that  the  court  shall  direct  the  process  to  the 
coroner  "  when  it  shall  appear  to  the  court "  that  the  sheriff  is 
prejudiced  as  alleged.  Can  we  say  that  it  did  so  appear  to  the 
court?  Xo  testimony  was  offered  to  prove  the  alleged  preju- 
dice of  the  sheriff.  A  case  might  be  presented  of  an  abuse  of 
the  discretion  given  to  the  court  in  this  matter  which  would 
justify  a  reversal  of  its  judgment,  but  such  abuse  does  not 
appear  in  this  case. 

Nor  did  the  court  err  in  excluding  from  the  panel  of  jurors 
those  who  declared  on  their  voir  dire  that  they  would  not  con- 
vict one  of  murder  on  circumstantial  evidence  alone.  Two 
trials  of  this  cause,  in  one  of  which  there  was  a  hung  jury,  dis- 
closed that  the  testimony  against  the  accused  was  exclusively 
circumstantial;  and  to  admit  such  men  upon  the  panel  would 
have  been  trifling  with  justice.  This  question  was  considered 
in  State  v.  ]]W,  (;o  Mo.,  401,  and  we  see  no  reason  for  depart- 
ing from  the  rule  there  announced.  There  is  no  complaint  that 
a  panel  of  forty  competent  jurors  was  not  obtained. 

Counsel  for  defendant  cites  Wharton's  Criminal  Evidence  in 


536 


AMERICAN  CRIMINAL  REPORTS. 


4i<-^> 


support  of  the  proposition  that  the  court  erred  in  admitting 
experts  to  testify  to  the  condition  in  which  the  body  of  Mrs. 
Leabo  was  found  on  the  second  post-mortem  examination,  held 
December  28,  eight  days  after  the  first  was  made,  and  witliuu 
notice  to  defendant,    Mr.  Wharton  pays :    "  The  practice  nus 
been  to  receive,  for  what  it  was  worth,''  such  testimony ;  but 
suggests  that  "  whenever  notice  of  such  observations  to  tlie 
opposing  interests  is  practicable,  such  notice  should  be  given." 
Sec.  421.     The  manner  in  Avhich  th?  examination  is  made 
affects  the  credibility  of  the  witness,  but  does  not  render  his 
testimony  incompetent.     In  Wharton  &  Stille's  Medical  Juris- 
prudence, §  1246,  it  is  said,  speaking  of  this  character  of  testi- 
mony, that  "  of  course,  when  investigations  are  conducted  by  a 
coroner  or  magistrate  immediately  after  the  commission  of  a 
crime,  the  public  action  of  such  functionary  is  adequate  notice 
to  all  parties  that  the  procedure  is  taking  place."     "  But  when, 
after  these  preliminary  inquiries  are  over,  an  exanii nation  is 
desired  by  one  of  the  parties  in  interest,  and  when  this  exami- 
nation relates  to  a  subject  matter  not  fleeting,  but  continuing, 
then  the  examination  is  analogous  to  the  deposition  of  a  wit- 
ness, and  the  policy  of  the  law  requires  that  it  should  be  taken 
only  after  notice  to  the  opposite  side.     Sometimes,  perhaps, 
testimony  of  value,  inadvertently  taken,  will  be  excluded  by 
the  application  of  this  rule."     Again,  it  is  said  in  the  san  e  sec- 
tion :     "  But  there  can  be  no  question  that,  when  the  quei>tion 
comes  fairly  up,  such  exaniiikation,  when  taken  flagrantly  ex 
parte,  at  a  time  when  there  could  readily  have  been  not'ce  to 
the  opposite  side,  will  be  ruled  out  as  inadmissible."     This 
seems  to  support  the  position  of  defendant's  counsel,  but  no 
court  has  yet  so  ruled,  as  is  by  the  learned  authors  conceded; 
nor  do  we  think  the  reasoning  sound  upon  which  the  ])roposi- 
tion  is  based.     There  is  but  a  slight,  if  any.  analogy  between 
the  examination  by  an  exp(;rt  or  any  one  else,  of  physical 
objects,  with  a  view  of  testifying  to  the  result  of  his  observa- 
tions, and  the  deposition  of  a  witness,  as  regai'ils  notice.     The 
notice  in  the  latter  case  is  required  in  order  that  the  opposite 
side  may  have  an  opportunity  to  cross-exainino  the  deponent 
upon  the  /acts  testified  to  by  him.     The  expert,  when  he  comes 
to  testify,  is  subject  to  that  cross-examination  as  to  the  facts  he 
observed  on  his  examination  of  the  body,  and  other  experts 


THE  STATE  v.  LEABO. 


537 


(Iniittino- 
'  of  Mrs, 
ion,  held 
witl' 

itieu  jius 
>iiy;  but 
s  to  the 
given." 
is  made 
wilder  his 
ill  Juris- 
of  testi- 
tod  by  a 
sion  of  a 
te  notice 
ut  when, 
inition  is 
is  cxanii- 
itinuino-, 
of  a  wit- 
be  taken 
pei'haps, 
udod  by 
ian  e  sec- 
que;5tion 
I'antlv  e,c' 
not''je  to 
■•"     Tliis 
1,  bnt  no 
)nceded ; 
))roposi- 
betvveen 
physical 
observa- 
;e.     The 
opposite 
leponent 
le  comes 
facts  he 
experts 


may  be  examined  with  relation  to  the  theories  advanced  by 
him  upon  the  facts  to  which  he  may  testify.  An}'  one  who  is 
a  practical  surveyor  may  testify  with  respect  to  the  bound- 
aries of  a  tract  of  land  in  controversy  between  two  litigants. 
Is  his  testimony  to  be  excluded  because  he  made  his  survey 
without  notice  to  the  other  party?  It  is  a  matter  which  goes 
to  the  credibility  of  the  witness.  But  numerous  instances 
might  be  noted  in  which,  if  the  rule  contended  for  is  to  prevail, 
a  litigant  would,  have  to  give  as  many  notices  to  his  adversary 
as  he  has  witnesses  summoned  in  his  behalf.  '"Examinations 
of  an  alleged  lunatic,  conducted  by  a  professed  specialist,  or 
examinations  of  blood  on  clothing,  or  of  allei^ed  poison  con- 
tained in  the  stomach  of  a  deceased  person,  or  in  bottles  or 
utensils,"  are  some  of  the  instances  in  which  the  same  authors 
think  notice  shouhl  be  given. 

It  is  to  bo  observed  that  the  professed  specialist,  when  he 
lestilies  to  the  insanity  of  the  alleged  lunatic,  woulil  meet  with 
but  little  credit  if  he  merely  testified  to  the  insanity  of  the  pa- 
tient, without  stating  the  facts  upon  which  he  bases  his  opin- 
ion, and  it  matters  not  that  he  ascertained  the  fact  by  an 
examination  of  the  patient.  Non-professional  witnesses  can 
testify  to  facts  in  their  knowledge,  ac(piired  without  notice  to 
the  other  siile,  and  so  we  think  may  })rol'essed  s[)ecialists;  and 
the  credibility  of  their  testimony  depends  upon  the  same  prin- 
ciples as  that  of  other  witnesses.  Specialists  give  their  opin- 
ion upon  hypothetical  facts  of  which  they  have  no  personal 
knowledge,  and  it  would  be  strange  if  their  ofjinions,  based 
upon  facts  within  their  own  knowledge,  should  be  excluded, 
and  also  their  testimony  as  to  the  facts  themselves,  because 
they  acquired  their  knowledge  of  the  facts  when  the  opposite 
party  was  not  present  at  the  time  and  place  when  and  where 
they  learned  the  facts.  It  frequently  is  important  in  a  crim- 
inal cause  to  prove  the  distance  between  two  given  points,  the 
nature  of  the  ground,  its  topography,  etc. ;  and  can  it  be  that 
after  the  crime  committed,  the  testimony  of  a  witness  who  has 
made  measurements  and  observations  is  inadmissible  because 
the  party  who  had  him  to  make  them  failed  to  notify  the  other 
side  to  be  present  i  We  are  not  prepared  to  yield  our  assent 
to  the  proposition, —  a.  proposition  which,  it  is  conceded,  no 
lonrt  has  yc*-  ,'nnounced  to  be  the  law. 

The  only  ot»jeclion  to  the  instructions  given,  except  the  first, 


M^l 


-r    * 


;?;.( 

-,- 

11''^' 

i 

1 '  ■ 

S^t , 

i 

m 

■< 

li> 

1 

IT' 


538 


AMERICAN  CRIMINAL  REPORTS. 


is  that  "  there  was  not  sufficient  evidence  offered  against  de- 
fendant to  rest  a  verdict  of  guilty  upon."  "VVe  think  other- 
wise. It  matters  not  that  if  we  had  been  jurors  wo  might 
have  rendered  a  different  verdict,  that  we  might  have  enter- 
tained a  reasonable  doubt  of  his  guilt.  There  was  abundant 
evidence  tending  to  criminate  the  accused,  all  circumstantial 
in  its  nature,  but  to  reverse  the  judgment  on  the  ground  con- 
tended for  would  be  a  precedent  for  the  reversal  of  every  con- 
viction obtained  on  circumstantial  evidence. 

The  first  mstruction  given  for  the  state  is  identical  with  in- 
struction number  1,  given  on  the  former  trial,  and  now,  as 
then,  we  see  in  it  no  error.  It  does  not  bear  the  construction 
placed  upon  it  by  defendant's  counsel.  It  does  not  direct  the 
jury  to  find  defendant  guilty  if  they  find  that  he  ^/irsf  clwl-ed 
his  wife  to  death,  and  then  drowned  her  in  a  well.  It  contains 
no  such  absurdity,  but  declares  that  if  he  killed  her  "  by  chok- 
ing and  strangling  her,  by  fixing,  fastening,  etc.,  his  hand 
about  her  neck  and  throat,  and  then  by  tiirowing  her  so  choked 
and  strangled  into  the  well,"  etc.  It  declared  that  if  he  killed 
her  by  the  means  specified,  which  are  all  those  means  named 
in  the  instruction,  viz.,  by  choking  and  strangling,  and  then 
throwing  iier  into  the  well, —  not  by  choking  and  strangling 
her  to  death,  and  then  throwing  her  into  the  well, —  choking 
and  strangling  do  not  necessarily  kill.  As  it  was  said  in  the 
opinion  delivered  in  this  case  on  the  former  occasion,  she  might 
have  been  "choked  and  strangled  to  a  point  of  insensibility," 
and  then  thrown  into  the  well,  and  killed  by  all  the  means  so 
employed  conjointly,  and  by  none  of  them  separately.  The 
instruction  was  based  upon  the  testimony,  which  left  in  doubt 
whether  he  choked  her  to  death,  and  then  threw  her  into  the 
well,  or  choked  anil  straligled  her,  and  threw  her  into  the  well 
before  life  was  extinct.  xVnd  it  cannot  be  that  the  jury  was 
bound  to  find  either  the  one  or  the  other,  or  acquit  the  defend- 
ant, if  fully  satisfied  that  he  committed  the  murder,  either  by 
choking  and  strangling  her  to  death,  or  by  choking  and  strang- 
ling her,  and  then  consummating  the  homicide  by  throwing 
her  into  the  well. 

The  last  alleged  error  is  that  the  prosecuting  attorney,  in 
his  closing  address  to  tlio  jury,  commented  on  the  verdict  of  a 
former  jury  which  convicted  the  defendant.  The  attorney  for 
the  defense,  Mr.  Silvers,  in  his  address  to  the  jury,  speaking  of 


THE  STATE  v.  LEABO, 


539 


niiglit 


certain  testimonj^  for  the  state  given  by  witnesses  who  had 
served  on  the  jury  which  convicted  defendant  at  the  lirst  trial, 
and  who  were  introduced  to  prove  that  defendant's  testimony 
in  his  own  behalf  on  that  occasion  was  materially  ditTerent 
from  his  testimony  on  tlie  last  ti-ial,  said:  "AVhy  don't  they 
speak  about  the  second  trial  of  this  case,  when  tlie  jury  hung? 
Now,  on  that  trial  we  proved  him  innocent  beyond  a  reason- 
able doubt."  Here  the  prosecuting  attorney  objected  to  the 
attorney's  remarks,  and  the  court  admonished  him  that  such 
allusions  were  improper.  The  attorney  proceeded  and  said : 
"  There  is  no  contradiction  between  this  trial  and  the  first  trial 
in  defendant's  evidence,"  etc.  "  In  the  name  of  heaven,  what 
motive  could  the  defendant  have  in  changing  his  testimony 
from  what  it  was  before  that  jury !  I  ask  the  attorneys  on 
the  side  of  the  state  to  show  any  reason  why  John  Leabo 
should  testify  different  now  from  then."  The  prosecuting  at- 
torney in  his  closing  address  said:  "Mr.  Silvers  has  asked  me 
to  give  you  a  motive  or  a  reason  why  defendant  should  change 
his  testimony.  .  .  .  What  is  the  motive  and  reason  for 
changing  his  testimony?  It  is  plain  enough.  lie  testitied  be- 
fore that  jury,  as  those  jurors  say  he  did,  and  that  jury  —  one 
of  the  best  and  most  intelligent  that  ever  sat  on  a  case  in  this 
court-house  —  convicted  him  on  that  tr'.tl,  and  now  he  comes 
here  and  changes  his  story  for  the  purjioses  of  this  trial."  The 
court  did  not  check  or  rebuke  the  prosecuting  attorney,  as  it 
should  have  done,  nor  did  defendant's  counsel  interpose  any 
objection  at  the  time. 

Section  19G5  provides  that  "  verdicts  may  be  set  aside,  and 
new  trials  awarded,  on  the  application  of  the  defendant.  A 
new  trial  is  a  re-examination  of  the  issue  in  the  siune  court. 
The  former  verdict  shall  not  be  used  or  refei'red  to  (mi  the  sub- 
sequent trial,  eitiier  in  the  evidence  or  the  arguments."  AVe 
hold  this  law  to  be  equally  applicable  to  new  trials  granted  by 
the  court  in  which  the  accused  was  tried,  and  trials  had  on  the 
reversal  of  a  judgment  by  this  court  and  rem.inuing  of  the 
cause  for  another  trial  to  tlio  court  which  rendered  the  reversed 
judgment;  and  if  no  sufficient  excuse  could  be  found  in  the 
record  for  the  conduct  of  the  prosecuting  attorney,  the  judg- 
ment should  be  reversed.  The  defense  read  in  evidence  a  dep- 
osition taken  by  that  side  in  which  the  deponent,  in  answer  to 


Ji:;  : 


640 


AMERICAN  CRIMINAL  REPORTS. 


a  direct  interrogatory  propounded,  stated  that  he  was  present 
at  the  former  trial  at  whicli  defendant  was  convicted.  Xo  ob- 
jection was  made  to  this  at  the  taking  of  tlie  deposition,  nor 
was  the  trial  court  asked  to  suppress  or  exclude  tliat  jwirt  of 
the  testimony  of  the  witness,  nor  did  defendant's  counsel  make 
any  objections  when  it  was  read  to  the  jury;  and,  coupling 
this  with  tlie  challenge  he  made  to  the  state's  attorney  to 
name  a  motive  defendant  could  have  had  for  clianging  his  tes- 
timony, while  it  does  not  excuse,  but  only  palliates,  the  con- 
duct of  the  prosecuting  attorney,  it  shows  that  the  defense  is 
to  blame  for  the  allusion  made  to  the  former  conviction  by 
the  prosecuting  attorney.  The  fact  that  the  defendant  had 
before  been  convicted  was  already  in  testimony  offered  by  the 
defense. 

Wo  do  not  mean  to  say  that  the  conduct  of  the  prosecuting 
attorney  was  proper.  We  have  had  repeated  occasions  re- 
cently to  censure  the  intemperate  zeal  of  prosecuting  attorneys 
displayed  in  criminal  causes;  and  have  again  and  again  tried 
to  impress  upon  them  that  they  are  under  the  same  ohlhjationa., 
as  representatives  of  the  state  hi  those  eases,  to  jfrotect  an  inno- 
cent person  accused  of  crime  as  to  convict  the  (juUtij;  but  we  are 
not  inclined  to  reverse  a  judgment  for  sucli  conduct  when  it  is 
apparent  that  it  occasioned  no  injury  to  the  accused.  Here 
the  fact  that  there  had  been  a  former  conviction  of  the  de- 
fendant had  been  proved  in  a  de|)osition  taken  and  rea<l  in  de- 
fendant's behalf;  and  the  bantering,  challenging  character  of 
the  defendant's  counsel  in  his  address  to  the  jury  provoked 
the  prosecuting  attorney  to  say  what  he  did.  The  fact  alluded 
to  was  known  to  the  jury,  and,  considering  all  the  circum- 
stances under  which  the  remarks  of  the  prosecuting  attorney 
were  made,  they  could  not  possibly  have  had  any  influence 
upon  the  minds  of  the  juroi's  to  induce  their  verdict. 

The  defendant  has  been  twice  convicted  by  a  jury  of  his 
county,  and  however  painful  it  may  be  to  us  to  announce,  as 
the  result  of  our  careful  examination  of  this  record,  that  the 
sentence  pronounced  against  him  must  be  executed,  yet  wo 
have  no  function  to  perform  but  to  declare  the  law.  The 
judgment  is  affirmed. 

(All  concur.) 


resent 
'^o  ob- 
n,  nor 
)art  of 
make 
upling 
ney  to 
lis  tes- 
e  con- 
ense  is 


THE  PEOPLE  V.  RICHMOND. 


541 


The  People  v.  Kichmond. 

(57  Mich.,  899.) 

Practice:  Withdrawal  of  plea  of  guilty  —  Appeal  —  Trial  upon  merits. 

In  all  cases  of  appeal  to  the  circuit  court  from  a  criminal  conviction  before 
a  justice  of  the  peace  on  a  plea  of  guilty,  it  is  the  right  of  the  accused 
to  withdraw  his  plea  of  guilty  and  have  the  case  retried  upon  the 
merits. 

Error  to  Van  Buren. 

3fose3  Tayrjart,  attorney-general,  for  the  people. 
Lester  A.  Tahor,  for  resjiondent. 

Champltn,  J.     The  respondent  was  charged  before  a  justice 
of  the  peace  with  not  keeping  a  room  in  which  liquors  wex'e 
sold,  closed  between  the  hours  of  9  and  10  o'clock  at  night. 
He  was  arrested  and  brought  before  the  justice,  when  he 
pleaded  guilty  to  the  comphiint.     Ho  does  not  appear  to  have 
been  represented  by  attorney  or  counsel  on  that  occasion.  The 
justice  imposed  the  least  penalty  provided  by  statute  for  such 
offense,  and  res[)ondent  thereupon  appealed  to  the  circuit  court. 
The  statute  giving  justices  of  the  peace  jurisdiction  in  crim- 
inal cases  provides :  "  H  the  accused  shall  plead  guilty  to  such 
charge,  the  court  shall  thereupon  convict  him  of  the  offense 
charged,  and  render  judgment  thereon."    How.  St.,  §  7098. 
Section  7109  provides:  "The  person  so  charged  with  and  by 
any  such  justice  of  the  peace  of  any  such  offense  may  appeal 
from  the  judgment  of  such  justice  of  the  peace  to  the  circuit 
court;  provided,  such  person  shall  enter  into  a  recognizance  to 
the  poople  of  the  state  of  Micliiyan  in  ;i  sum  not  less  than 
fifty  nor  more  than  live  hundroil  dollars,  within  ten  days  after 
tlie  renditio«\  of  the  judgment,  with  one  or  more  sufficient 
airotios,  conditioned  to  appear  before  said  court  on  the  first 
day  of  the  next  term  thereof,  and  prosecute  his  appeal  at  said 
term  to  effect,  and  abide  the  orders  and  judgment  of  said 
court." 

Respondent  filed  a  petition  in  the  circuit  court  for  leave  to 
withdraw  his  plea  of  guilty,  and  to  enter  a  plea  of  not  guilty, 
;;nd  for  a  trial  of  the  charge  against  him  upon  the  merits.  He 
■•rated  that  he  was  induced  to  plead  guilty  through  a  misap- 


^i 


542 


AMERICAN  CRIMINAL  REPORTS. 


m 


t' 


'   If 


h 


prehension  of  the  facts  and  law,  and  would  not  have  so  pleaded 
had  it  not  been  for  such  misapprehension ;  that  he  had  fully 
and  fairly  stated  the  case  in  the  cause  to  L.  A.  Tabor,  his 
counsel,  who  resides  .at  Lawton,  and  that  he  had  a  good  and 
substantial  defense  to  said  charge,  as  he  was  advised  by  his 
said  counsel,  after  such  statement  made  as  aforesaid,  and  which 
he  verily  believed  to  be  true.  The  petition  was  duly  verified 
by  the  oath  of  the  petitioner.  Upon  the  hearing  of  the  peti- 
tion, the  court  made  the  following  order,  as  appears  from  the 
journal  entry  thereof: 

"  T/ie  People  V.  Ralph  C.  Richmond. 

"In  this  cause  the  respondent,  having  prayed  the  court  for 
leave  to  withdraw  the  plea  of  'guilty'  by  him  heretofore 
pleaded  at  the  court  below,  and  to  plead  over  '  not  guilty,'  and 
L.  A.  Tabor,  Esq.,  having  been  lieard  in  support  thereof,  and 
the  prosecuting  attorney  in  opposition  thereto,  and  it  appearing 
to  the  court  that  the  showing  made  is  insuHicient  to  warrant 
the  granting  of  the  relief  prayed,  therefore  it  is  ordered  that 
the  prayer  of  the  respondent  be,  and  the  same  hereby  is,  de- 
nied, as  made  without  prejudice.  And  it  is  further  ordered 
that  said  respondent  have  leave,  if  he  so  desires,  to  make  a 
further  and  additional  showing  in  the  premises  at  any  time  be- 
fo  1  the  opening  of  court  on  Friday  next,  in  the  afternoon; 
and  that  if,  upon  such  showing,  it  appear  that  the  defendant 
was  improperly  induced  to  plead  guilty,  and  that  his  plea  was 
not  understandingly  and  voluntarily  made,  and  that  he  had  a 
defense  to  the  charge  as  set  forth  in  the  complaint  as  against 
him  upon  the  merits,  that  then  and  in  such  case  he  be  allowed 
to  withdraw  his  plea  of  *  guilty  '  over." 

The  respondent  not  appearing  and  showing  cause  pursuant 
to  the  exigency  of  the  foregoing  order,  the  court  made  another 
order  requiring  respondent  to  appear  before  the  court  for 
sentence  on  or  before  the  next  Monday  after  the  making  of 
the  order,  at  which  time  the  respondent  appeared  in  court  and 
protested  against  being  sentenced  upon  his  former  plea  of 
guilty;  but  the  court  proceeded  to  sentence  him  to  pay  a  line 
of  §25,  together  with  costs  of  prosecution,  taxed  at  $1.95,  on  or 
before  the  1st  day  of  May  then  next,  and  also  that  he  be  im- 
prisoned in  the  county  jail  for  a  period  of  ten  days  from  and 
including  the  1st  day  of  May  next,  and  in  default  of  paying 


l^loadod 
ml  fully 


THE  PEOPLE  V.  RICHMOND. 


543 


said  fino  before  the  expiration  of  said  term  of  iinprisoiDiiont 
that  he  stand  imprisoned  and  bo  further  detained  in  said  county 
jail  for  the  further  period  of  sixty  days  thereafter,  nnloss  such 
fine  and  costs  be  sooner  paid.  From  this  action  of  the  circuit 
court  respondent  has  appealed  to  this  court. 

The  attorney-general  insists  tliat  the  i)rocecdings  were  en- 
tirely regular,  and  warranted  by  the  authority  of  the  follow- 
ing cases:  Com.  V.  Winton,  108  Mass.,  48.");  C'oi/i.  v.  Mahoncij, 
115  Mass.,  151;  Com.v,  BIukc,\i  Allen,  188;  Com.  v.  Chapman, 
11  Cash.,  422;  Wtchclrev.  State,  19  Conn.,  478;  Strahaa  Case, 
7  Cox,  Criin.  Cases,  85. 

The  general  rule  undoubtedly  is  that  upon  a]ipo:il  the  case 
stands  in  the  ai)i)ellate  tribunal  in  the  same  pliglit  it  was  in,  so 
far  as  the  ])leadings  are  concerned,  in  the  court  below.  In  the 
Case  of  Mahoney  he  had  pleaded  guilty  in  the  nuinicipal  court, 
and  was  sentenced,  but  appealed  to  the  sujicrior  court,  where 
the  district  attorney  moved  for  sentence.  The  defendant  ob- 
jected, and  claimed  a  trial  by  jury.  CJray,  C.  J.,  said:  "A 
defendant  in  a  criminal  case,  who  has  once  pleaded  to  the 
charge  against  him,  has  no  right  to  witlidiaw  his  ])lea,  but  is 
conlln(.>(l  to  the  issues  of  law  or  fact  thereby  raised  or  left  open, 
unless  the  court  in  which  the  case  is  ])ending  sees  lit  to  exer- 
cise the  discretion  of  allowing  him  to  withdraw  it,  and  plead 
anew.  Jf  he  appeals  from  a  judgment  against  him  in  the  court 
in  which  his  plea  is  iirst  made,  the  appeal,  indeed,  vacates  the 
judgment,  but  it  does  not  multi[)ly  his  grountls  of  defense,  or 
eidarge  the  issue  once  joined  between  the  commonwealth  and 
himself.  The  same  defenses  are  open  to  him  in  the  appellate 
coui't  as  in  the  court  below,  and  no  other.  .  If  he  i)leads  guilty 
upon  his  Iirst  arraignuient,  and  his  [)lea  is  received  by  the  court 
and  recorded,  it  is  an  admission  of  all  facts  well  charged  in  the 
indictment  or  complaint,  and  a  waiver  of  his  riglit  of  trial  by 
jury  thereon,  and  unless  withdrawn  by  special  leave  of  court, 
or  a  motion  is  interposed  in  arrest  of  judgment  for  legal  defects 
appai-ent  on  the  record,  leaves  nothing  to  be  done  but  to  pass 
sentence.  Gen.  Stats.,  ch.  158,  go;  Com.  v.  Wciiton,  108 Mass., 
485." 

The  decisions  in  Massachusetts  are  'n  conformity  to  the 
strict  rule  of  pleading  and  practice  under  the  criminal  law  as 
adininistcred  in  England  and  in  several  of  the  states  of  the 


aj£*! ' 


■mm- 


i ! 


514 


AMERICAN  CRIMINAL  REPORTS. 


K^' 


IJnlon.  Pint  in  this  state  the  statute  lias  veliovod  the  adminis- 
tration of  the  criminal  law  of  much  of  its  severity,  and  lius 
prescribed  rules  intended  to  protect  the  accused  from  inconsid- 
erate action,  and  secure  to  him  a  fair  trial  and  just  punishment. 
The  statute  authorizing  the  appeal  was  intended  to  secure  a 
retrial  of  the  cause  in  the  circuit,  if  such  retrial  is  desired  by 
respondent.  It  makes  no  distinction  as  to  the  right  of  appeal 
between  a  conviction  based  ujion  a  plea  of  guilty,  and  one  of 
not  guilty  and  trial  before  a  jury.  The  ai)peal  bond  in  eiicli 
instance  requires  the  accused  to  prosecute  his  appeal  to  effect. 
and  this  contemplates  a  prosecution  in  the  usual  way  of  trial 
and  verdict.  On  the  appeal  the  accused  may  stand  upon  his 
plea  of  guilty  entered  in  the  court  below,  if  he  chooses  to  do 
so,  in  which  case  it  would  be  the  duty  of  the  court,  before  i)ro- 
ceeding  to  sentence,  to  investigate  the  case  and  the  circum- 
stances of  such  ))lea,  and  ascertain  whether  it  was  made  freely, 
and  with  full  knowledge  of  the  nature  of  the  accusation,  and 
without  undue  influence.  How.  St.,  §  0')oS.  This  statute  was 
enacted  to  protect  all  persons  accused  of  crime,  standing  before 
the  court  on  a  plea  of  guilty,  and  is  not  limited  in  its  scope 
and  application  to  cases  where  the  plea  is  to  an  information. 
It  is  as  applicable  to  a  case  appealed,  where  the  warrant  stands 
as  the  information,  on  the  one  hand,  as  it  is  to  a  case  of  a  \y,\v[y 
indicted,  on  tlie  other.  In  most  cases,  the  party  appealing 
does  so  to  obtain  a  retrial  on  tiie  mei-its,  and  not  for  a  modifi- 
cation of  the  sentence.  It  is  obviously  so  in  this  case,  as  the 
judgment  of  tlie  court  below  was  the  minimum  which  the  law 
authorized  for  the  offense  charged. 

In  all  cases  of  appeal  from  a  criminal  conviction  on  a  plea  of 
guilty,  we  think  it  is  tlie  right  of  the  accused  to  withdraw  iiis 
plea  of  guilty,  and  have  the  case  retried  upon  tlie  merits.  We 
tliink  the  oi)ject  of  tlie  law  granting  a  rigiit  of  ajij^'al  in  case 
of  conviction  was  for  the  purpose  of  according  to  the  accused 
a  retrial  m  the  circuit  or  appellate  court.  Tliis  end  would  be 
defeated  if  it  rests  in  the  discretion  of  the  appellate  court  to 
permit  a  withdrawal  of  the  ])lea  of  guilty  for  the  purpose  of 
pleading  to  the  merits.  Under  the  construction  which  we  give 
to  the  statute,  the  accused  was  entitled  as  matter  of  I'ight  to 
withdraw  his  plea  of  guilty  and  interpose  tlie  plea  of  not 
guilty.     This  construction  we  think  is  in  accord  with  the  prin- 


SMURR  r.  THE  STATE. 


545 


.a«lininis- 

,  ami  lias 

inconsid- 

nishmont. 

secure  a 

losired  by 

of  appoal 

u\  one  of 

d  in  each 

to  ctrect. 

,y  of  trial 

upon  Ills 

OSes  to  do 

efoi'o  i)ro- 

le  circuiu- 

ide  freely, 

ation,  and 

atute  was 

in<^'  before 

n  its  scope 

["orniation. 

■ant  stands 

of  ajiarty 

ap]iealin;^ 

'  a  uiodifi- 

ise,  as  tlie 

uh  tlie  law 

n  a  plea  of 
lidi'aw  his 
erits.  AV'e 
'al  in  case 
le  accused 
I  would  be 
te  court  to 
purpose  of 
ch  we  give 
f  I'iglit  to 
lea  of  not 
1  the  prin- 


ciples of  justice,  and  the  manifest  intent  of  the  legislature.  It 
follows  that  the  judgment  must  be  set  aside,  and  the  record 
remanded  to  the  court  bf>h)w.  with  leave  to  respondent  t(» 
withdraw  his  plea  of  guilty,  and  to  interpose  a  plea  of  not  guilty. 

(Tho  other  justices  concurred.) 


Smukk  v.  Tiik  State. 


Practice:  Adjourned  term  —  Waiver  bn  fnilure  to  ohjeet  — Murder 

defenxr  —  DeJ'ciine  of  brother. 


■  .«?''//- 


1.  AD.IOUKNF.D    TF.UM  —  IIOI.DIXU    TWO   COIUTS  IN  SAMK   CIRCl'lT   AT   SAMK 

TIME. —  Whero  ii  JiuIki',  liming  stntutory  authority  to  apiioint  an 
acljouriic'il  turiii  of  court,  uiakt's  an  orilor  in  terni-tinio  for  lioliiinf;;  an 
adjourned  term,  causi's  nolico  of  such  adjourned  turni  to  1)l-  given,  ap- 
pears at  tho  tinii'  appointed  and  ojienrt  court,  the  i)rocce(hn.i;s  al  such 
adjourned  term  are  not  void,  although  held  at  ii  time  wlien  another 
court  of  the  same  circuit  migiit  have  Ijeen  in  session  under  tlio  statute, 
and  was  in  session,  presided  over  by  a  special  judge. 

2.  Waivku  by  FAii.liiK  TO  oiUKCT.— If  a  defen<lant  voluntarily  appears, 

and  goes  to  trial  without  olijection  at  an  adjourned  term,  irregularly 
held,  he  will  he  deemed  to  have  waived  all  objection  to  the  irregu- 
larity. 
8.  HOMlciUE  — SKiii'-DF.KKXSK  — Dkfknsk  OF  BUOTHKK.— The  gent-ral  rule 
is  that  a  brother  may  lawfully  defend  his  brother  when  in  peril,  and, 
if  need  be,  take  life  in  sueli  defense:  l)ut  when  both  the  brothers  are  in 
fault,  and  unite  in  bringing  on  the  fatal  rencounter,  this  general  rule 
does  not  apply,  and  there  nuist  be  a  retreat,  or  an  attem)>t  to  retreat, 
before  either  of  the  brothers  can  Iw  excused  or  justified  in  slaying  the 
person  whom  they  have  assailed. 

From  tho  Whitley  Circuit  Court. 

.9.  K  Stndah'  and  //.  C.  Ifanna,  for  appellant. 
C.  M.  Dawaon,  ]>rosecuting  attorney,  //.  Colertcl'  and  W.  S. 
Oppenheim,  for  the  state. 

Elliott,  J.     On  the  22d  day  of  September,  1883,  the  Whitley 

circuit  court,  then  being  regularly  in  session,  entered  an  order 

directing  that  an  adjourned  term  be  held,  contmencing  on  the 

29th  day  of  October,  1883,  and  notice  was  given  of  the  ad- 

Voi.  VII— 35 


■9 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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VniSTn.N.Y.  14SM 

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546 


AMERICAN  CRIMINAL  REPORTS. 


m 


journed  term  according  to  law.  The  time  fixed  in  the  order 
was  a  time  when,  under  the  provisions  of  the  statute,  the  court 
in  Kosciusko  county  might  be  in  session;  and  Kosciusko 
county,  in  conjunction  with  Wiiitley  county,  constituted  the 
thirtv-third  judicial  circuit.  Tlio  court  in  the  former  countv 
was  actually-  in  session  on  the  23d  day  of  October,  1883,  and 
continued  in  session  during  the  time  the  trial  of  the  appellant 
was  in  progress;  the  judge  of  the  thirty-third  circuit  having 
appointed  a  special  judge  to  hold  that  court.  The  adjourned 
term  of  the  Whitley  circuit  court,  at  which  the  appellant  was 
tried,  was  held  by  the  duly  elected  judge  of  that  court.  The 
appellant  entered  into  trial  without  any  objection,  and  made 
none  until  after  verdict,  and  then,  for  the  first  lime,  presented 
the  question  of  the  authoi'ity  of  the  judge  of  the  thirty-third 
judicial  circuit  to  hold  the  adjourned  term.  The  statute  fixes 
the  time  for  holding  the  courts  in  the  thirty-thii-d  circuit,  and 
we  know  judicially  that  the  September  term,  ISSo,  of  the  Whit- 
ley circuit  court  began  on  ^londay,  September  3d,  and  ended 
on  the  '22(1  day  of  that  month.  We  know,  also,  that  the  Se[)- 
tember  term  of  the  Kosciusko  circuit  court  began  on  the  Monday 
following  the  close  of  the  AVhitley  circuit  court,  and,  £  5  the 
term  of  the  latter  court  began  on  the  day  named,  Monday. 
September  24,  lSS3.it  had  been  in  session  five  weeks  when  the 
judge  convened  the  adjourned  term  pursuant  to  the  order  pre- 
viously made,  and  in  accordance  with  the  notice  duly  given. 
The  statute  provides  that  the  length  of  the  term  of  the  Kosci- 
usko circuit  court  shall  be  seven  weeks,  "  if  the  business  thereof 
requires  it;"  but  there  is  no  command  that  it  shall  continue 
for  that  length  of  time.  The  statute  cannot  be  regarded  as 
absolutely  Ifxing  the  term  at  that  period,  for  it  declares  that  it 
shall  continue  for  that  length  of  time  upon  condition  that  the 
business  shall  require  it. 

The  qu(}stion  whether  the  business  requires  that  the  full  term 
of  seven  weeks  shall  be  occupied  is  one  to  be  decided  by  the 
judge,  for  it  is  not  determined  by  any  provision  of  the  statute. 
Casilf/  V.  State,  32  Ind.,  02;  SmiUs  v.  CoverdUL  21  Ind,,  271. 
As  the  decision  of  the  question  as  to  the  length  of  time  that 
the  court  shall  sit  is  committed  to  the  judge,  his  judgment 
must  settle  the  question ;  and  even  if  it  be  conceded  that  it  is 
a  decision  that  can  be  reversed  on  appeal,  there  must  be  an 


Ki 


8MURR  V.  THE  STATE. 


547 


the  order 

the  court 

vosciusko 

uted  the 

r  county 

1883,  ami 

appelhmt 

t  liaving 

idjourned 

Uant  was 

irt.    The 

ind  made 

^resented 

irty-thhil 

ute  fixes 

•cuit,  and 

the  Whil- 

nd  ended 

t  the  Sep 

e  Monday 

id,  £  5  the 

Monday. 

when  the 

)rder  pre- 

ily  given. 

lie  Kosci- 

ss  thereof 

continue 

yarded  as 

ces  that  it 

that  tiie 

full  term 
jd  by  the 
e  statute. 
Ind,,  271. 
time  that 
judgment 

that  it  is 
ust  be  an 


objection  and  an  exception  in  order  to  present  any  question  for 
review,  for  his  decision  can  in  no  event  be  anything  more  than 
erroneous.  This  reasoning  leads  us  to  the  conclusion  that  the 
judge  W41S  not  bound  to  sit  the  full  period  of  seven  weeks  in 
Kosciusko  county,  but  might  abridge  the  term  by  adjournment. 
It  was  therefore  within  his  power  to  shorten  the  term  of  that 
court,  ami  if  he  exei-cised  this  authority  directly  by  an  order  of 
adjournment,  or  indirectly  by  opening  an  adjourned  term  in 
another  county  of  his  circuit,  it  would  seem  to  logically  result 
that  the  adjourned  term  would  be  the  one  regularly  held,  and 
the  term  left  to  be  held  by  the  special  judge  be  tlie  one  that 
was  irregularly  held.  It  is  difficult  to  perceive  why  the  ad- 
jou-  led  term,  hehl  pursuant  to  an  order  made  in  regular  ses- 
sion, and  hehl  by  the  duly-:]ualified  judge  himself,  should  not 
be  deemed  the  only  legal  term;  but  we  do  not  find  it  neces- 
sary to  go  to  that  extent  in  this  case,  for  it  is  sullioient  for  our 
present  purpose  to  declare  that  tlie  judge  of  the  thirty-third 
circuit  had  authority  to  abridge  the  term  of  the  Kosciusko  cir- 
cuit court,  and  that,  as  he  did  have  this  authority,  his  act  in 
appointing  an  adjourned  term  of  the  AVhitley  circuit  court 
was  not  void.  Where  a  court  has  general  authority  over  a 
class  of  cases,  or  a  general  subject,  a  ruling  or  order  made  by 
it  is  not  void,  although  it  may  be  erroneous.  As  said  in  Siiel- 
son  V.  State  ex  rel ,  10  Ind.,  29:  "Kut  the  power  to  decide  at 
all  carries  with  it  the  power  to  tlecide  wrong  as  well  as  right." 
Lantz  V.  Mufet,  102  Ind.,  23;  Quad  v.  Abbett,  102  Ind.,  233, 
see  p.  239.  The  authority  to  shorten  the  length  of  the  term  in 
Kosciusko  county  carried  with  it  the  authority  to  create  a 
vacation  by  ending  that  term;  and  whether  the  court  did  or 
did  not  err  in  deciding  that  there  she  ild  be  a  vacation  in  the 
Kosciusko  circuit  court  on  and  after  October  29th,  or  whether 
it  did  or  did  not  make  a  mistake  in  the  procedure  adopted,  is 
immaterial;  for,  no  matter  how  much  there  is  of  error  in  the 
proceedings  of  a  superior  court,  the  proceedings  are  not  void 
unless  the  court  transcends  its  jurisdiction.  We  need  not  in- 
quire what  the  rule  would  be  if  the  statute  had  positively  fixed 
the  lensfth  of  the  terms  of  the  Kosciusko  circuit  court  at  seven 
weeks,  for  the  term  was  not  definitely  fixed,  but  its  duration, 
within  the  limits  prescribed,  was  left  to  be  determined  by  the 
court  itself.    The  utmost  that  can  be  granted  the  appellant  is 


548 


AMERICAN  CRIMINAL  REPORTS. 


/I 


IV. 

n 


m 


. ' ' " 

If'-' 

lit: 


W 


that  the  adjourned  term  was  hold  under  an  order  erroneously 
made.  It  cannot  be  declared  that  it  was  held  without  any  au- 
thority whatever,  and  unless  it  was  so  held  the  proceed in<>s 
were  not  void. 

There  is  high  authority  for  the  proposition  that,  independent 
of  statutory  warrant,  courts  of  superior  jurisdiction  have  au- 
thority to  hold  adjourned  terms.  Jfcc/ianies'  Hank  v.  Wkherft, 
0  Wheat.,  107;  I/arris  v.  Gest,  4  Ohio  St.,  469;  Casily  v.  State, 
supra.  We  have,  however,  a  statute  authorizing  courts  to  ap- 
point adjourned  terms,  and  a  court  assuming  to  act  under  that 
statute  cannot  be  said  to  act  without  color  of  authority,  al- 
though it  may  proceed  erroneously. 

The  only  possible  objection  to  the  proceeding  of  the  court  in 
this  instance  is  that  it  fixed  the  time  for  hohling  the  adjourned 
term  at  a  time  wlien  another  court  in  the  same  circuit  might 
have  been  in  session;  but  as  the  term  of  the  other  court  might 
have  been  abridged  by  the  order  of  the  judge  so  that  it  would 
not  have  been  in  session  at  the  time  fixed  for  the  adjourned 
term,  and  as  the  order  for  the  adjourned  term  was  made  while 
the  court  Avas  lawfully  in  session,  and  under  a  statute  confer- 
ring authority  to  hold  adjourned  terms,  the  order  for  holding 
that  term  cannot  be  regarded  as  void.  The  uttnost  that  can 
be  justly  said  in  impeachment  of  that  order,  and  the  acts  done 
under  it,  is  that  they  were  erroneous,  since  the  mistake,  if  mis- 
take there  was,  consisted  solely  in  wrongly  deciding  upon  the 
force  and  effect  of  tiie  statute. 

We  do  not  controvert  the  general  doctrine  that  a  court  can- 
not be  held  at  a  time  when  there  is  clearly  no  authority  to  hold 
it,  nor  do  we  impugn  the  general  doctrine  that  it  is  error  to 
hold  two  courts  in  the  same  circuit  at  the  same  time,  where 
there  is  no  statutory  provision  authorizing  it.  Ciun.  v.  (roda, 
84  Ind.,  209:  natfen  v.  State,  80  Ind.,  ;{94;  MrCool  v.  State,  7 
Ind.,  378;  Diinii  v.  Sfnte,  2  Ark.,  229;  f/t  re  M/'/fhif/ton,  24 
Kan,,  214;  GarlleJc  v.  Dinin,  42  Ala.,  404;  P'reem.  Judgin., 
§  121.  It  is  not  necessary  to  question  the  soundness  of  the  gen- 
eral doctrine  stated,  for  here  there  was  |)o\ver  in  the  court 
to  create  a  vacation  by  an  order,  and  there  was  also  power  to 
order  an  adjourned  term ;  so  that  here  there  is  no  question  as  to 
the  existence  of  power  in  the  court  to  make  a  decision,  but  the 
sole  inilrmity  in  the  proceedings  relates  to  the  mode  of  exer- 


SMURR  V.  THE  STATE. 


549 


oneously 
t  any  au- 
)cee(lin^s 

ependcnt 
have  uii- 

\l  V.  State, 
rts  to  ap- 
nder  that 
lority,  al- 

B  court  in 
idjonrned 
iiit  might 
ui't  mif^ht 

it  would 
idjournod 
[ido  while 
to  confcr- 
r  hohling 

that  can 
acts  done 
ke,  if  niis- 
upon  the 

3ourt  can- 
ty to  hold 

error  to 
lie,  whore 

V.  G(kI((, 
V.  iStat,',  7 
ini/fon,  21 

Judgm., 
f  the  gen- 
tho  court 
power  to 
stionasto 
n,  but  the 
)  of  exer- 


cising the  power  residing  in  the  court.    In  every  case  in  which 
a  court  makes  an  erroneous  ruling,  there  is  a  wrongful  exeicise 
of  authority;  but  such  a  wrongful  exercise  of  authority  does 
not  render  the  proceedings  void,  although  it  does  make  them 
erroneous.    The  question  of  power  or  authority  might,  per- 
haps, have  arisen  had  the  adjourned  term  been  fixed  at  a  time 
when  the  law  imperatively  required  that  the  Kosciusko  circuit 
should  be  in  session ;  but  its  adjourned  term  was  not  fixed  at  a 
time  when  that  court  was  required  to  be  in  session.    On  the 
contrary,  it  was  fixed  at  a  time  when  the  judge  might  rightfully 
have  adjourned  that  court.    This  feature  is  a  prominent  one, 
and  distinguishes  the  cose  froni  such  cases  as  that  of  Ja  re 
JIUiiiKjton,  supra.    If  the  judge  had  made  the  proper  order 
declaring  the   Kosciusko  circuit  court  adjourned  after  five 
weeks  of  the  term  had  expired,  as  he  undoubtedly  might  have 
done,  there  could  have  been  no  question  as  to  the  regularity  of 
tlie  adjourned  term  held  by  him  in  Whitley  county,  and  the 
error  in  this  respect,  while  it  might,  perhaps,  have  been  avail- 
able had  objection  been  seasonably  made,  cannot  be  deemed 
to  render  the  order  for  the  adjourned  term  void;  and,  if  that 
order  was  not  void,  the  trial  at  that  term  was  not  a  mere  nul- 
lity,    easily  V.  State,  32  Ind.,  G2;  Knuj/d  v.  State,  70  Ind.,  375; 
Lahadie  v.  Dean,  47  Tex.,  90;  Slate  v.   (7^a?'^',  30  Iowa,  168; 
Cooh  V.  Smith,  51  Iowa,  G3G. 

Principle  and  authority  logically  lead  to  the  conclusion  that 
nothing  worse  can  be  said  of  the  adjourned  term  than  that  it 
was  irregularly  held.  It  cannot  be  justly  affirmed  that  it  was 
held  without  color  of  authority.  In  the  case  of  State  v.  Knight, 
11)  Iowa,  01,  it  was  held  that  a  judge  might  continue  a  term  of 
court  into  the  time  fixed  by  law  for  holding  a  court  in  the 
same  district,  and  the  earlier  cases  of  Davis  v.  Fish,  1  Greene 
(Iowa),  100  (18  Am.  Dec,  387,  see  note,  p.  392);  and  G fable  v. 
Slate,  2  Greene  (Iowa),  559,—  were  in  effect  overruled.  It  was 
hehl  by  the  same  court  in  Weaver  v.  Cooled ge,  15  Iowa,  211, 
that  a  judgment  rendered  three  days  after  the  time  fixed  for 
the  commencement  of  another  court  in  the  same  district  was 
not  void ;  and  in  State  v.  ClarJc,  supra,  and  Cook  v.  Smith, 
supra,  like  rulings  were  made.  In  the  very  recent  cases  of 
State  V.  Stevens,  25  N.  W.  Rep ,  777,  and  State  v.  Peterson,  25 
N,  W.  Rep.,  780,  it  was  held  that  a  judgment  pronounced  at  a 


'I 


560 


AMERICAN  CRIMINAL  REPORTS. 


B< 


term  continued  after  the  time  fixed  for  another  term  of  the 
same  district  was  not  even  erroneous.  The  supremo  court  of 
Wisconsin,  in  Skite  v.  Leahi/,  1  Wis.,  225,  denied  the  doctrine 
of  the  two  early  Iowa  cases,  as  well  as  that  of  Archer  v.  liosx, 
2  Scam.,  303,  and  decided  that  holding  a  court  during  the 
time  designated  by  law  for  holding  another  court  in  the  same 
judicial  circuit  did  not  invalidate  the  proceedings.  In  the  case 
of  Siate  V.  Montyomenj,  8  Kan.,  351,  a  liUe  doctrine  was  de- 
clared.    In  this  last  case  it  was  said : 

"  The  legislature  have  named  the  day  for  the  o]iening  of  a 
term,  hut  luive  not  for  the  closing.  Tiiat  is  coniiiled  to  the 
discretion  of  the  judge,  and  is  determined  by  the  amount  of 
business,  and  the  necessity  of  suitors." 

This  is  the  case  here  —  the  time  is  fixed  for  ojiening,  but  not 
for  closing,  the  Kosciusko  circuit  court.  That,  as  we  have  seen, 
was  left  to  the  judgment  of  the  judge. 

Brewer  v.  State,  G  Lea,  198,  decides  that  although  a  judge 
pro  tempore  appoints  an  adjourned  term,  and  orders  it  to  be 
held  at  a  time  when  another  court  of  thesarae  circuit  might  be 
in  session,  the  proceedings  are  not  void.  The  court  placed  its 
decision  upon  the  same  principle  as  that  which  sustains  the 
rulings  of  a  jiulge  de  facto,  anil  said,  among  other  things: 

"Nor  does  the  fact  that  the  term  of  another  court  of  the 
circuit  commenced  in  the  interval  a.  "it  the  result.  This  very 
point  arose,  and  was  decided  in  favor  of  the  validity  of  the 
proceedings,  in  C/uek  v.  Merchantu''  JVafl  Bank,  9  Heisk., 
489." 

In  Venahle  v.  White,  2  Head,  582,  it  was  held  that  Avhere  no 
objection  is  made,  and  tiiere  is  color  of  authority  for  holiUng 
th*^  tei-m,  although  the  statute  under  which  the  judge  assumetl 
to  act  had  been  repealed,  still,  the  proceedings  were  not  voitl. 
It  was  there  said: 

"  There  can  be  no  doubt  whatever,  upon  reason  and  author- 
ity, that  a  judgment  given  by  a  judge  de  facto,  sitting  and 
holding  court  at  the  proi)er  time  and  place,  is  as  valid  and  free 
from  error  as  a  judgment  pronounced  by  a  judge  rightfully  in 
office.  If  so,  upon  what  reason  shall  we  hold  that  the  judg- 
ments and  decrees  of  a  judge  regularly  in  office  are  erroneoiis 
because  he  held  his  court  under  color  of  a  law  that  turned  out 
to  be  repealed  or  invalid  \ " 


ii 


SMURR  V.  THE  STATE. 


551 


1  of  the 
court  of 
Joctriue 

■ing  the 
lie  same 
the  case 
was  de- 

ng  of  a 
to  the 
louiit  of 

,  but  not 
Lve  seen, 

a  judge 
it  to  be 
night  be 
aced  its 
ains  tile 
igs: 

^t  of  the 

his  very 

y  of  the 

lleisk., 


no 


liere 
hoklinir 
issunied 
ot  void. 

author- 
ng  and 
md  free 
fully  in 
B  judg- 
'oneous 
[led  out 


In  IlensUe  v.  State,  3  Ileisk.,  202,  the  same  general  principle 
is  declared. 

The  cases,  and  among  them  our  own,  declare  that  where  an 
adjourned  term  is  held  under  color  of  authority,  it  will  be  pre- 
sumed that  it  was  piojjerly  ordered  and  held.  Rvtcf  v.  State, 
2  Ind.,  435;  S/io-ts  v.  Lvnn,  28  Ind.,  458;  Harper  v.  State,  42 
Ind.,  405;  Cook  v.  SMtoa,  20  111.,  107;  State  v.  Clarlc,  supra,' 
Cook  V.  Smltli,  supra.  This  principle  justifies  the  conclusion 
that  where  there  is  color  of  authority  the  proceedings  cannot 
be  deemed  voi<l,  since  it  is  an  elementary  rule  that  no  presump- 
tion can  sustain  a  void  act. 

The  principle  which  governs  in  cases  in  which  the  court  is 
held  by  a  judge  de  fado  is  essentially  the  same  as  that  which 
governs  the  jiresent.  If  a  judge  not  legally  elected  or  quali- 
fied may,  if  acting  under  color  of  authority,  pronounce  valid 
judgments,  it  cannot  be  doubted  that,  upon  the  same  principle, 
judgment.5  pronounced  at  a  term  not  legally  held,  but  yet  held 
by  the  duly  (lualilied  judge  under  color  of  law,  must  be  valid. 
The  reason  for  the  rule  is  stronger  and  clearer  where  the  judge 
lie  jure  holds  a  term  of  court  at  an  improper  time,  but  under 
color  of  authority,  than  where  a  term  of  court  is  held  by  a 
judge  who  actually  has  no  legal  right,  and  simply  acts  under 
color  of  authority.  Yet  the  law  is  quite  well  settled  that  the 
acts  of  a  judge,  who  is  only  such  de  facto,  are  not  void.  We 
have  many  cases  in  our  own  reports  declaring  and  enforcing 
this  general  rule. 

The  decision  in  Case  it.  State,  5  Ind.,  1,  sui)plies  a  striking 
illustration.  In  tliat  case  there  was  a  vacancy  in  the  office  of 
judge,  and  the  sheritf  and  clerk,  without  any  authority  what- 
ever to  aj)i)oint  a  judge  where  the  office  was  vacant,  did  ap- 
point a  judge  pro  tent.,  who  held  a  term  of  court,  and  it  was 
decided  that  h  s  acts  were  not  void.    The  court  there  said: 

"  The  appointment  constitutes  a  part  of  the  record.  It  ap- 
pears in  legal  foi'ui,  and  gave  to  the  appointee  at  least  a  color- 
able title  to  the  office.  He  was  no  usurper,  but  supposed 
iiimsclf  to  be  rightfully  invested,  and  acted  in  good  faith.  A 
court  de  fado,  if  not  de  jure,  was  thus  constituted.  During 
the  trial  no  attempt  was  made  to  impeach  the  authority  of 
that  court;  and  after  conviction  it  was  too  late  '■>  question  the 
validity  of  the  title  under  which  its  duties  were  exercised." 


'  i"-'  '■ 


552 


AMERICAN  CRIMINAL  REPORTS. 


im 


This  doctrine  has  been  adopted  and  acted  upon  in  many 
cases.  Jonen  V.  State,  11  Ind.,  357;  Slidtfuch  v.  Slate,  11  Ind  . 
173,  page  478;  Feanter  v.  Woodfll,  23  Ind.,  403,  see  page  4!)7; 
Oppenhelni  v.  P'lttshirgh,  etc.,  II.  W.  Co.,  85  Ind.,  471 ;  State 
ex  rcl.  V.  Mxirdock,  80  Ind.,  124;  Moore  v.  Tnmhle,  04  Ind.,  153; 
RiKjevs  V.  Beaiichamp,  102  Ind.,  33. 

In  Tayto)'  v.  Skrine,  2  Tread.  (;S.  C),  COO,  it  was  held  that 
the  acts  of  one  claiming  to  be  a  judge  by  virtue  of  an  uncon- 
stitutional statute  were  not  void,  and  this  doctrine  was  ap- 
proved in  Cn'ighton  v.  Piper,  14  Ind.,  1S2.  The  decision  in 
Guhiberts  v.  Adams  Exp.  Co.,  28  Ind.,  181,  is  tliat  where  a 
party  goes  to  trial  before  an  acting  justice  of  the  peace,  witli- 
out  objection,  he  cannot,  on  appeal,  bo  heurd  to  question  the 
authority  of  the  justice  to  try  tiie  cause.  In  Oppenheim  v. 
Ptttsburgh,  etc.,  E.  W.  Co.,  supra,  it  was  held  that  where  a 
party  went  to  trial  before  a  judge  de facto,  he  waived  all  ques- 
tions as  to  the  right  of  the  judge  to  hear  and  decide  the  case. 
"We  have  many  cases  declaring  that  where  a  party  goe"?  to 
trial,  without  objection,  before  a  judge  assuming  to  act  under 
color  of  authority,  he  cannot,  after  judgment  or  conviction, 
successfully  make  the  objection  that  the  judge  had  no  autiior- 
ity  to  try  the  cause.  Feader  v.  Woodjlll,  supra;  Mitchell  v. 
uinlth,  24  Ind.,  252;  Watts  v.  State,  33  Ind.,  237;  Winterrowd 
V.  MessicJc,  37  Ind.,  122;  Bose  v.  Allison,  41  Ind.,  270;  Ken- 
nedy  v.  State,  53  Ind.,  542;  State  ex  rel.  v.  Murdoch,  supra; 
Fassinow  v.  State,  80  Ind.,  235;  Adams  v.  Gowan,  80  Ind.,  358; 
Huffman  v.  Cauhle,  80  Ind.,  501;  Board,  etc.,  v.  Seaton,  00 
Ind.,  158;  Kennetj  v.  Phillipy,  01  Ind.,  511 ;  3ff/ers  v.  State,  02 
Ind.,  300,  see  page  300;  Wood  v.  Franklin,  07  Ind.,  117; 
Poijers  v.  /Jeauchamp,  supra.  Other  cases,  prococdi?ig  u|)on 
the  same  general  principle,  hold  that  "the  statute  fully  au- 
thorizes the  court  to  hold  an  adjourned  term  for  the  purpose 
of  completing  the  business  undisposed  of,  and,  the  contrary 
not  appearing,"  the  supreme  court  "will  presume  that  the 
court  was  regularly  held,  and  the  cause  properly  brought  to 
trial."  IVood  v.  Franklin,  supra;  Shirts  v.  Irons,  supra; 
Ilanes  v.  Worthington,  14  Ind.,  320.  A  similar  ruling  was 
made  in  Shircliff'  v.  State,  00  Ind.,  300. 

There  is  some  confu.«;ion,  and  perhaps  conflict,  in  the  earlier 
cases;  but  the  later  cases,  supported  as  they  are  by  all  the 


SMURR  V.  THE  STATE. 


553 


well-considered  cases  in  our  reports,  must  be  regarded  as 
firmly  settling  the  rule  tluit  wliero  a  judge  assumes  to  act 
under  lawful  autliority,and  there  is  color  of  authority,  his  acts 
will  not  bo  void,  and  tluit  if  the  party  voluntarily  goes  to  trial 
without  objection,  an  objection  after  conxiction  will  bo  too  late 
to  bo  of  avail.  This  is  in  harmony  with  the  great  weight  of 
authority  elsewhere.  /Jauk  of  Xorth  AiaerJca  v.  McCall,  4 
Binney  (I'a.),  «7l;  St.nte  e,v.  rel.  v.  Count  1/  Court,  50  Mo.,  317; 
BlaiMufti  V.  State,  '.)  IL^ad,  (;!)iJ;  Clarh^v.  Com., '2,^  Pa.  St., 
138;  Com.  v.  •JLitch'.'i,  123  Mass.,  525;  Com,,  v.  Taher,  123 
Mass.,  253;  S!tr<'hat,\i  Cis,',  122  Mass.,  4+5;  State  v.  Anone,  2 
Nott  &  McC,  27;  State  v.  Alllmj,  12  Ohio,  1(5;  Mastermn  v. 
Mattheion,m  Ala.,  2i;();  ^[a!/o  v.  Stone  am, '2,  Ala.,  3i)0;  State 
V.  Carroll,  38  Conn.,  44i). 

The  ultimate  conclusion  which  wo  have  reached  is  this: 
Where  a  judge,  having  statutory  authority  to  appoint  an  ad- 
journed term  of  court,  doos  make  an  order  in  term-time  for 
holding  an  adjoiu'nod  term,  causes  notice  of  such  adjourned 
term  to  be  given,  appeal's  at  the  time  appointed  and  opens 
court,  the  ])roeeo(lings  at  such  an  adjourned  term  are  not  void, 
although  held  at  a  time  when  another  court  of  the  same  cir- 
cuit might  have  been  in  session  under  the  statute,  and  was  in 
session,  presided  over  by  a  special  judge.  As  the  proceedings 
were  not  void,  the  failure  of  the  appellant  to  object  at  the  trial 
was  a  waiver  of  all  (piestions  as  to  the  regularity  of  the  pro- 
ceedings at  the  adjourned  tei'in.  If  he  had  made  an  objection 
before  conviction,  we  should  have  been  faced  by  a  very  dif- 
ferent question  from  that  which  the  record  presents.  It  is  not 
necessary  for  us  to  decide—  nor,  indeed,  would  it  be  proper 
for  us  to  do  so  —  what  would  be  the  rule  if  an  objection  were 
made,  before  ti'ial,  to  proceedings  at  an  adjourned  term  held 
under  such  circumstances  as  that  at  which  the  appellant  was 
convicted. 

The  conclusion  which  wo  have  reached  does  the  appellant 
no  substantial  injury,  for  he  was  tried  by  the  rightful  judge, 
and  was  denied  no  right  for  which  he  asked.  The  utmost  that 
can  be  said  is  that  the  adjourned  term  was  irregularly  held  by 
the  proper  judge,  and,  as  the  appellant  lost  no  substantial 
rights  by  the  alleged  error  of  the  judge,  and  made  no  objec- 
tion until  after  trial,  we  cannot,  under  the  rule  declared  by  our 


%•>  ■ 


m 


mi 


664 


AMERICAN  CRIMINAL  REPORTS. 


statute  and  enforced  by  our  decisions,  reverse  the  judgment. 
From  the  earliest  to  the  latest  of  our  decisions  it  has  been  held 
that  where  there  is  an  irregularity  in  the  ])roceedings,  it  is 
waived  by  a  failure  to  object  at  the  proper  time.  Our  cases 
carry  this  doctrine  so  far  as  to  hold  that  there  may  bo  a  waiver 
of  constitutional  rights,  and  in  this  they  are  sustained  by  tin! 
great  weight  of  authority.  Lowery  v.  J/owunf,  103  Ind.,  440; 
Thomas  v.  State,  103  Ind.,  419;  Jiuthr  v.  State,  97  Ind.,  378; 
"Waiver  of  Constitutional  Kights  in  Criminal  Cases,"  6  Crim. 
Law  Mug.,  182;  In  re  Staff,  03  Wis.,  285.  It  results  from  this 
principle  that  the  failure  of  the  defendant  to  oliject  before 
conviction  concludes  him  from  questioning  the  regularity  of 
the  proceedings  at  the  adjourned  term.  This  conclusion  is  in 
harmony  with  the  spirit  of  our  Criminal  Code,  which,  while  it 
awards  to  an  accused  liberal  means  and  ample  opportunity  to 
present  objections  to  the  rulings  of  the  trial  court,  requires 
that  all  objections  should  be  seasonably  presented  to  that 
court.  The  rule  is  just  in  itself,  and  salutary  in  its  practical 
operation.  An  accused  who  voluntarily  enters  upon  a  trial 
without  objecting  to  the  regularity  of  the  oi'der  a])pointing 
the  term  at  which  he  is  tried,  and  takes  the  chances  of  a  trial, 
ought  not,  after  conviction,  to  be  permitted  to  object  that  the 
term  was  not  regularly  held,  since  such  a  i)ractice  would  enable 
a  felon  to  oftentimes  defeat  justice  by  securing  delay,  and  it 
would  entail  upon  the  courts  and  the  public  an  expense  and 
inconvenience  that  one  accused  of  crime  has  no  right  to  de- 
mand that  they  should  be  compelled  to  bear. 

It  is  the  general  rule  that  a  brother  nuiy  lawfully  defend  his 
brother  when  in  peril,  and,  if  need  be,  take  life  in  such  defense; 
and  so  the  law  was  declared  in  the  instruction  of  the  trial 
court  which  is  assailed  in  argument.  But  this  general  rule  is 
not  without  exceptions.  Where  both  the  brothers  are  in  fault, 
and  unite  in  wrongfully  bringing  on  the  fatal  renbounter,  the 
general  rule  does  not  ai)ply.  It  would  be  rank  in  just  ce  to 
permit  a  man  who  has  joined  his  brother  in  attacking  another, 
to  take  the  life  of  the  person  whom  they  had  wrongfully  at- 
tacked, at  least  without  retreating,  or  in  good  faith  attemi>ting 
to  retreat.  It  may  be  that  if  the  appellant  had  not  been  a 
participant  in  the  combat  he  might  lawfully  have  interfered 
in  defense  of  his  brother,  for  the  law  allows  a  brother,  in  case 


8MURR  V.  THE  STATE. 


655 


Den  held 
i^%  it  is 


of  need,  to  defend  a  brother.  WayhnijJd  v.  State,  50  Ind.,  122 ; 
1  JJish.  Criin.  Law,  §  877.  But  thei*e  are  well-reasoned  cases 
holding  that  if  the  brother  in  whoso  defense  the  accused  en- 
gages is  in  the  fault,  and  has  not  retreated,  or  attempted  to 
retreat,  the  interfei-ence  is  not  justifiable  or  excusable.  Cain's 
Cane,  20  W.  Ya.,  GSl;  State  v.  Greet',  22  W.  Va.,  SoO,  see  pages 
818,  819.  In  this  case,  however,  we  need  not  go  so  far  as  the 
court  did  in  the  cases  referi'ed  to,  for  here  the  instruction  pro- 
ceeds, as  well  it  may  under  the  evidence,  upon  the  liy|)othesis 
that  both  of  the  brothers  were  participants  and  principals  in 
the  encounter  that  resulted  in  the  killing  of  the  deceased.  1 
Bish.  Crim.  J.aw,  §  (}()4;  1  Whart.  Crim.  Law,  g  478.  In  such 
a  case  the  accused  cannot  go  acquit  on  the  ground  of  self- 
defense  ii  he  was  himself  in  fault  and  so  continued.  Barnett 
V.  State,  10(»  Ind.,  171;  Stoi'i/  o.  State,  t>i)  Ind..  413;  McDermott 
V.  State,  81)  Ind.,  1.S7;  PresKei'  v.  Sfat<',  77  Ind.,  274.  If,  how- 
ever, we  were  wrong  in  (nir  construction  of  the  instruction, 
and  in  our  view  of  the  law,  the  judgment  could  not  be  re- 
versed, for  the  reason  that  the  contention  of  the  state,  stoutly 
made  and  earnestly  pressed,  that  the  motion  for  a  new  trial 
does  not  assign  for  error  the  giving  of  the  instruction  here 
assailed,  must  be  sustained. 

We  cannot  reverse  upon  tlie  evidence.  Two  juries  have  con- 
victed upon  it,  two  trial  judges  have  sustained  these  convic- 
tions, and  when  the  case  was  here  before  upon  substantially 
the  same  evidence,  this  court,  after  adverting  to  the  theory  of 
the  defense,  said :  "  At  all  events,  as  there  is  evidence  in  the 
record  fairly  sustaining  the  verdict,  we  cannot  disturb  the 
judgment  of  the  court  below  upon  the  sutflciency  of  the  evi- 
dence." We  have,  notwithstanding  the  fact  that  two  juries 
have  convicted,  and  two  trial  judges  approved  the  convictions, 
and  the  further  fact  that  this  court  has  once  sustained  the  con- 
tention of  the  state  as  to  the  sufficiency  of  the  e'  -dence,  again 
carefully  examined  the  evidence,  and  can  reach  no  other  con- 
clusion than  that  it  sustains  the  verdict.  There  may  possibly 
be  mitigating  circumstances  that  would  render  the  exercise  of 
executive  clemency  proper  to  mitigate  the  severity  of  the 
punishment;  but,  however  this  may  be,  there  is  nothing  that 
will  justify  us  in  setting  aside  the  verdict. 

Judgment  affirmed 


ya:  ' 


550 


AMERICAN  CRIMINAL  REiORFS. 


pi 


I 


m 

1%: 


W>^ 


<  ?s 


BiEMEL  V.  State. 
(71  Wis.,  444.) 

Practice:  Public  policy  requireit  that  attorneys  paid  by  private  parties 
should  not  prosecute  criminal  cases. 

Conduct  of  trial  —  Attorney  paid  by  private  party.— An  ftttorney, 
paid  by  private  parties  and  appearing  for  tlie  prosecution  in  tl»o  mu- 
nicipal court  of  Milwaukee  upon  the  trial  for  murder  ujioii  tlio  ret|uest 
of  such  parties  and  the  district  attorney,  but  without  any  ap]K>intment 
from  tiie  court,  is  not  a  proper  attorney  to  aid  in  tho  prosecution  under 
Laws  of  Wisconsin,  1887,  chapter  854. 

Error  from  Municipal  Court  of  Milwaukee. 

Information  for  murder  against  Andrew  Biemol.  On  the 
trial  defendant  was  found  guilty  of  manslaughter  in  the  third 
degree  and  now  brings  error. 

Marlham,  Williams  cb  Bright  and  Edward  S.  Bragg,  for 
plaintiff  in  error. 

C.  E.  Estahrooh,  attorney-general,  and  Z.  E.  Zvse,  assistant 
attorney-general,  for  defendant  in  error. 

Taylor,  J.  Tho  plaintiff  in  error  was  tried  upon  an  infor- 
mation for  the  murder  of  one  Pagel,  in  the  municipal  court  of 
Milwaukee  county.  On  the  trial  tiie  plaintiff  in  error  was  con- 
victed of  manslaughter  in  the  third  degree.  The  plaintiff  in 
error,  upon  the  return  of  the  verdict,  moved  the  court  to  set 
aside  the  verdict,  and  grant  a  now  trial,  upon  tho  minutes  of 
the  court,  for  the  following  reasons:  "  (1)  That  the  court  erred 
in  refusing  to  permit  the  defendant  to  show  the  employment 
of  Mr.  R.  N.  Austin,  the  attorney  who  appeared  for  the  state, 
and  his  payment  by  private  parties;  and  that  the  court  erred 
in  holding  that  counsel  for  the  state  receiving  pay  from  pri- 
vate parlies  should  be  permitted  to  take  part  in  the  trial  on 
behalf  of  the  state.  (2,  3)  That  the  verdict  is  contrary  to  the 
evidence  and  to  the  charge  given  by  the  court."  "  (4)  That 
the  verdict  is  perverse,  and  contrary  to  the  law  and  facts.  (5) 
That  justice  has  not  been  done  the  defendant."  The  motion 
was  overruled,  and  the  defendant  excepted;  and  after  judg- 
ment was  pronounced  upon  the  verdict,  he  settled  a  bill  of  ex- 


BIEMEL  r.  STATE. 


567 


te  parties 

attorney, 
n  tlio  mu- 
I'o  ivi|uest 
ix'intinent 
ion  undut 


On  tho 
he  third 


'affff,  for 


assistant 


in  infor- 
court  of 
ivas  con- 
intiff  in 
t  to  set 
iiutes  of 
rt  erred 
oyment 
10  state, 
ft  erred 
ora  pri- 
trial  on 
'  to  the 

0  That 
ts.  (5) 
motion 
r  judg- 

1  of  ex- 


ceptions in  tho  case,  and  brings  the  judgment  and  proceedings 
on  tho  trial  to  this  court  upon  a  writ  of  error,  for  review. 

As  wo  have  conchided  that  tho  learned  iudgo  of  the  munic- 
ipal court  erred  in  refusing  to  permit  tiie  defendant  to  show 
that  Mr.  Austin,  who  appeared  and  assisted  the  district  attor- 
ney in  prosecuting  on  behalf  of  tho  state,  was  employed  and 
paid  by  private  parties  to  aid  in  such  prosecution,  we  shall  not 
pass  upon  tho  other  causes  of  error  assigned  by  tho  learned 
counsel  for  tho  plaintiff  in  error,  fui ilier  tnan  to  say  that  when 
tho  accused  admits  tho  killing,  and  the  onl  •  defense  is  justifl- 
ablo  homicide,  tho  evidence  would  have  to  be  very  clearly  in 
favor  of  the  accused  upon  tho  question  involved  in  order  to 
justify  this  court  in  setting  aside  tho  verdict  against  tho  decis- 
ion of  the  trial  judge  refusing  a  new  trial  upon  that  ground. 
Tho  question  involved  in  the  first  assignment  of  error  has  not 
heretofore  been  presented  to  this  court  in  tho  forn^  presented 
in  this  case,  and  wo  are  now  called  upon  for  tho  first  time  to 
determine  whether,  upon  tho  trial  of  a  person  accused  of  a 
high  crime  involving  his  imprisonment  in  tlie  state  prison  for 
life  or  for  a  term  of  years,  private  persons  may  employ  coun- 
sel, whether  from  good  or  bad  motives,  and  send  them  into 
our  courts  to  prosecute  persons  accused  of  such  crimes,  and 
whetlier  tho  courts  may  allow  such  paid  attorneys  to  prosecute 
the  accused  against  his  consent.  Wo  think  public  policy,  and 
the  fair,  just  and  impartial  administration  of  tho  criminal  law 
of  the  state,  make  it  the  duty  of  the  courts  to  exclude  tho  paid 
attorneys  of  private  persons  from  appearing  as  prosecutors. 
That  public  policy  is  against  permitting  them  to  prosecute  is, 
we  think,  clearly  indicated  by  the  several  provisions  of  our 
laws  upon  the  subject  of  criminal  prosecutions.  The  statutes 
provide  for  the  election  in  each  county  of  a  prosecuting  at- 
torney, and  they  make  it  his  duty  to  appear  and  prosecute  all 
persons  informed  against  or  indicted  for  crimes  in  the  courts 
of  his  county,  and  when  for  any  reason  there  is  no  public  pros- 
ecutor in  the  county,  the  court  in  which  the  prosecution  is 
pending  shall  appoint  some  one  to  prosecute  the  accused. 
Section  752,  Revised  Statutes,  says:  "It  shall  be  the  duty  of 
the  district  attorney  to  prosecute  all  criminal  actions  in  the 
circuit  courts  of  his  county,  etc.,  and  all  criminal  actions,  ex- 
cept common  assault  and  battery,  and  actions  for  bi'eaches  of 


558 


AMERICAN  CRIMINAL  REPORTS. 


W  i\ 


5 


Ft," 


II 


the  peace  by  the  use  of  abusive  or  threatening  words,  before 
any  magistrate,  when  requested  by  the  magistrate  before  whom 
the. action  is  pending,  and  upon  like  request  to  attend  all  crim- 
inal examinations  before  an}'  magistrate;  and  at  the  request  of 
a  grand  jury  to  appear  before  them  and  examine  witnesses,  to 
give  advice,  to  draw  all  bills  of  indictment  and  informations, 
and  issue  subpoenas  and  other  processes  for  the  attendance  of 
witnesses."    Section  754  reads  as  follows :  "  No  district  attor- 
ney shall  receive  any  fee  or  reward  from  or  on  behalf  of  any 
prosecutor  or  other  individual  for  services  in  any  prosecution 
or  business  to  which  it  shall  be  his  oiiticial  duty  to  attend ;  nor 
be  concerned  as  attorney  or  counsel  for  either  part}',  other 
than  for  the  state  or  county,  in  any  civil  action  depending 
upon  the  same  state  of  facts  upon  which  any  criminal  prosecu- 
tion commenced  but  undetermined  shall  depend ; "  "  nor  shall 
any  district  attorney  while  in  office  be  eligible  to  or  hold  any 
judicial  office  whatever."    Section  750  provides  for  the  ap- 
pointment of  a  person  in  the  place  of  the  district  attorney 
when  the  office  is  vacant,  or  when  the  district  attorney  is  ab- 
sent from  the  court  unable  to  attend  to  his  duties,  or  when  he 
shall  have  acted  as  attorney  for  or  bo  near  of  kin  to  the  ac- 
cused, and  "  when  the  person  shall  be  so  appointed  by  the 
court  he  shall  for  the  time  being  perform  all  the  duties  and 
have  all  the  powers  of  the  district  attorney."    Section  4649 
directs  that  all  informations  for  crimes  shall  be  signed  by  the 
district  attorney  and  filed  by  him.    In  addition  to  these  pro- 
visions, the  legislature,  recognizing  the  propriety  of  giving  the 
district  attorney  the  aid  of  other  counsel  in  the  prosecution  of 
important  or  intricate  cases,  by  chapter  354,  Laws  1887,  has 
provided  "  that  the  circuit  judges,  within  their  respective  cir- 
cuits, are  authorized  in  their  discretion  to  appoint  counsel  to 
assist  the  district  attorney  in  the  prosecution  of    persons 
charged  with  crime  in  all  cases  when  the  crime  charged  is 
punishable  by  imprisonment  in  the  state  prison.    Such  addi- 
tional counsel  shall  be  paid  in  the  same  manner  as  now  pro- 
vided by  law  for  the  payment  of  counsel  for  indigent  crimi- 
nals."' This  last  act  was  undoubtedly  passed,  recognizing  the 
fact  that  in  some  criminal  cases  there  was  great  propriety  if 
not  the  necessity  for  furnishing  the  district  attorney  aid  in 
their  prosecution.    The  propriety  of  such  aid  had  been  recog- 


s,  before 
re  whom 
all  crim- 
jquest  of 
lesses,  to 
mations, 
dance  of 
ict  attor- 
f  of  any 
>secution 
jnd;  nor 
t}',  other 
(pending 
prosecu- 
lor  shall 
old  any 
the  ap- 
attorney 
ay  is  ab- 
when  he 

0  the  ac- 

1  by  the 
ities  and 
ion  4C49 
J  by  the 
ese  pro- 
ving the 
ution  of 
887,  has 
live  cir- 
unsel  to 
persons 
rged  is 
:h  addi- 
aw  pro- 

t  crimi- 
ing  the 
riety  if 

aid  in 

recog- 


BIEMEL  r.  STATE. 


559 


nlzed  by  this  coMrt  in  the  cases  cited  below;  and  it  may  be 
reasonably  inferred  that  this  act  was  passed  to  sanction  the 
custom  of  the  courts  which  had  grown  up  in  the  state  of  al- 
lowing the  district  attorneys  the  aid  of  assistant  counssl  in 
difficult  cases,  and  at  the  same  time  to  regulate  and  limit  it  to 
the  appointment  of  counsel  who  are  not  paid  by  private  par- 
ties, but  from  the  public  funds,  thereby  placing  the  assistant 
attorney  in  the  same  impartial  and  unprejudiced  position  as 
the  prosecuting  attorney  It  cannot  be  claimed  that  either 
before  or  since  the  passage  of  the  act  of  1887  private  parties 
could  thrust  their  hired  attorneys  into  the  courts  to  take  charge 
of  or  assist  the  district  attorney  in  the  prosecution  of  any  crim- 
inal case,  without  the  consent  of  the  court  and  the  district  at- 
torne3\  Whenever  attorneys  other  than  the  district  attorney 
have  been  heretofore  permitted  to  appear  in  a  criminal  case, 
they  have  come  in  by  the  consent  of  both  the  court  and  the 
district  attorney,  and  not  upon  any  claim  of  right  to  be  there 
by  the  employment  of  private  individuals.  Heretofore  no 
case  has  come  before  this  court  where  the  trial  judge  has  per- 
mitted any  one  to  appear  as  the  assistant  of  the  district  attor- 
ney when  it  was  shown  that  he  was  employed  by  private 
parties,  and  came  into  court  at  their  request.  In  this  case, 
defendant,  by  his  counsel,  offered  to  show  on  the  trial  of  this 
case  the  status  of  Mr.  Austin,  who  appeared  in  court  to  aid  in 
the  prosecution  of  the  defendant.  Before  entering  upon  the 
trial  the  counsel  for  the  defendant  stated  to  the  court:  "  I  de- 
sire, before  counsel,  other  than  those  employed  by  the  state, 
proceed  to  take  part  in  the  trial  of  this  case  by  act  or  conduct, 
to  raise  the  question  so  that  it  shall  appear  upon  the  record 
that  on  behalf  of  the  defendant  we  enter  our  protest  and  ob- 
jection against  the  appearance  on  behalf  of  the  state  of  any 
person  employed  for  reward  by  any  private  association  or  pri- 
vate person.  Such  we  charge  to  be  the  condition  which  the 
counsel  who  has  just  risen  for  the  state  occupies,  and  we  offer 
(unless  it  be  admitted)  to  prove  that  fact  upon  the  record,  so 
that  we  may  iiave  the  ruling  of  the  court."  To  this  proposi- 
tion the  learned  judge  of  the  municipal  court  replied:  "This 
court  has  always  refused  to  go  into  the  investigation  as  to 
compensation  of  counsel."  The  counsel  for  the  defendant  an- 
swered :  "  We  do  not  desire  to  prove  the  amount  of  compen- 


560 


AMERICAN  CRIMINAL  REPORTS. 


M- 


h^H 


sation  the  attorney  is  to  receive,  but  offer  to  show  that  he  is 
emploj'ed  by  an  organization  known  as  the  'Sailors'  Union,' 
so  that  we  stand  in  fact  defending  ourselves  against  the  union." 
The  court  then  remarked:  "What  do  the  gentlemen  say  on 
the  other  side?"  The  district  attorney  replied:  "The  only 
thing  I  can  say  about  the  matter  is,  Mr.  Austin  appears  in  this 
case  to  assist  me  at  ni}"^  request."  In  a  further  conversation 
between  the  counsel  for  the  defendant  and  the  district  attor- 
ney, it  was  stated  that  Mr.  Austin  appeared  at  the  preliminary 
examination  of  the  accused,  but  not  at  the  request  of  the  dis- 
trict attorney;  that  the  district  attorney  did  not  request  h'm  to 
go  there,  and  did  not  know  that  he  was  employed  by  the  sail- 
ors' union.  The  attornej'  for  the  defense  then  offered  to  prove 
that  Mr.  Austin  was  employed  by  private  parties.  The  court 
refused  to  permit  the  proofs,  and  the  counsel  for  the  defend- 
ant duly  excepted. 

The  evidence  in  the  case  shows  that  the  person  alleged  to 
have  been  killed  by  the  defendant  was  a  member  of  the  sailors' 
union,  and  there  was  also  3vidence  in  the  case  tending  to  show 
that  Pagel,  the  deceased,  and  another  union  sailor,  came  on 
the  vessel  where  the  defendant  was  and  where  Fagel  was  shot, 
for  the  purpose  of  removing  the  defendant  off  the  vessel.  For 
the  purposes  of  this  decision,  we  must  treat  the  case  as  though 
the  defendant  had  proved  by  competent  evidence  that  Mr. 
Austin,  who  appeared  and  assisted  in  the  prosecution  by  the 
permission  of  the  court,  was  employed  for  that  purpose  by  the 
sailors'  union  or  by  some  other  private  parties,  and  that  he 
was  to  receive  a  compensation  for  his  services  from  such  union 
or  other  private  parties,  and  from  them  only.  The  question  for 
determination  is  whether  it  is  in  accord  with  the  statutes  and 
laws  of  the  state  and  with  public  policy  that  the  court  should 
permit  an  attorney  employed  by  and  expecting  compensation 
from  private  parties  to  appear  and  aid  in  the  prosecution  of  a 
person  charged  with  a  crime  punishable  by  imprisonment  in  the 
state  prison.  We  think  it  is  quite  clear  from  the  reading  of 
our  statutes  on  the  subject,  as  well  as  upon  public  polic}',  that 
an  attorney  employed  and  paid  by  private  parties  should  not 
be  permitted  either  by  the  courts  or  by  the  prosecuting  iittor- 
ney  to  assist  in  the  trial  of  such  criminal  cases.  The  laws 
have  clearly  provided  that  the  district  attorney,  who  is  the 


BIEMEL  V.  STATE. 


>61 


that  he  is 
i'  Union,' 
le  union." 
in  say  on 
The  only 
rs  in  this 
versation 
'ict  attor- 
jliminarv 
f  the  dis- 
!st  h'm  to 
'  the  sail- 
to  prove 
Che  court 
e  defend- 

Ueged  to 
le  sailors' 
;  to  show 
came  on 
was  shot, 
sel.  For 
s  though 
that  Mr. 
>n  by  the 
se  by  the 
that  he 
ich  union 
istion  for 
:utes  and 
•t  should 
)ens<ation 
tion  of  a 
iut  in  the 
sading  of 
licy,  that 
ould  not 
ig  iittor- 
Che  laws 
lo  is  the 


officer  provided  by  the  laws  of  the  state  to  initiate  and  carry 
on  such  trials,  shall  be  unprejudiced  and  unpaid  except  by  the 
state,  and  that  he  shall  have  no  private  interest  in  such  prose- 
cution.    He  is  an  officer  of  the  state,  provided  at  the  expense 
of  the  state  for  the  purpose  of  seeing  that  the  criminal  laws 
of  the  state  are  honestly  and  impartially  administered,  unprej- 
udiced by  any  motives  of  private  gain,  and  holding  a  position 
analogous  to  that  of  the  judge  who  presides  at  the  trial.     Such 
is  the  view  taken  of  the  office  of  prosecuting  attorney  by  the 
courts  of  this  country  as  well  as  of  England,  and  we  think  it 
is  the  true  view  of  his  position.    Ifttrd  v.  People,,  25  Mich., 
410.     In  this  case  the  court  says:  "  The  only  legitimate  object 
of  the  prosecution  is  to  show  the  whole  transaction  as  it  was, 
•  whether  its  tcndenc}''  be  to  establish  guilt  or  innocence.     The 
prosecuting  officer  represents  the  public  interests,  which  can 
never  be  promoted  b\'  the  conviction  of  the  innocent.     His 
object,  like  tlmt  of  the  court,  should  be  simply  justice;  and  he 
has  no  right  to  sacrifice  this  to  the  pride  of  professional  suc- 
cess."    Malier  v.  People,  10  :Mich.,  225,  226;  Pc(ji»a  v.  Chap- 
mil)),  S  Car.   6c  P.,  551);  Regain  v.    Orc/ai/'d,   id.,  505,  note. 
These  cases  clearly  indicate  the  duty  of  the  prosecuting  attor- 
ney to  proceed  with  all  fairness  in  presenting  the  cau:^  '  of  the 
state  to  the  jury,  and  in  prosecuting  the  whole  case,  even 
though  parts  of  the  case  as  presented  should  make  in  favor  of 
the  innocence  of  the  accused.     Tliis  method  of  presenting  a 
case  is  not  that  favored  or  j)ursued  in  civil  cases,  where  the 
paid  attorneys  of  the  respective  parfos  conduct  them.     And 
criminal  cases  are  not  likely  to  be  [)resented  if  the  prosecution 
is  permitted  to  be  conducted  by  the  paid  attorneys  of  parties 
who  from  passion,  prejudice,  or  even  an  honest  belief  in  the 
guilt  of  the  accused,  are  desirous  of  procuring  his  conviction. 
The  statute  of  this  state  having  carefully  provided  that  the 
prosecuting  attorney  shall,  like  the  judge  on  the  bench,  be 
free  from  prejudice  or  private  interest  in  conducting  the  trial 
of  criminal  cases,  it  would  seem  to  be  eminently  proper  that 
the  courts,  in  peruMtting  or  selecting  assistants  to  the  public 
prosecutor  under  the  authority  of  the  new  law  upon  the  sub- 
ject, viz.,  chapter  354,  Laws  1SS7,  should  permit  or  select  only 
such  assistants  as  are  unprejudiced  and  impartial  as  the  prosecu- 
tor provided  by  law.     This  question  has  been  fully  considered 
Vol.  VII  — 30 


ii  ■; 


R 


562 


AMERICAN  CRIMINAL  REPORTS. 


'A 


IsS. 


h  I 


by  the  courts  of  Michigan  and  Massachusetts, —  states  in  which 
the  laws  prescribing  the  duties  of  public  prosecutor  are  sub- 
stantially like  ours, —  and  the  courts  of  these  states  have  uni- 
formly held  that  attorney's  emplojred  by  private  parties  ought 
not  to  be  permitted  to  aid  the  district  attorneys  in  the  conduct 
of  criminal  cases.  Meister  v.  People,  31  Mich.,  99;  Sneed  v. 
People,  38  Mich.,  248;  J\ople  v.  Hurst,  41  Mich.,  328;  Com.  v. 
Knapp,  10  Pick.,  477-482;  Com.  v.  Williams,  2  Cush.,  582-584; 
Co7n.  V.  King,  8  Gray,  501 ;  Com.  v.  Gihhs,  4  Gray,  146.  In 
this  last  case  the  court  holds  that  where  an  attorney  is  ap- 
pointed to  prosecute  a  case,  m  the  absence  of  the  attorney- 
general,  the  person  so  appointed  ought  to  have  the  same 
general  qualifications  of  the  attorney -general ;  and  that  the 
appointment  of  an  attorney  to  prosecute  a  criminal  case  de- 
pending upon  the  same  facts  as  a  civil  action  in  which  such 
attorney  had  been  previously  employed  was  a  sutlicient  ground 
of  error  to  reverse  the  judgment.  In  People  v.  Jlumt  it  was 
held  error  to  allow  an  attorney  to  assist  in  prosecuting  a  crim- 
inal action  against  whom  the  accused  had  testilied  in  the 
matter  out  of  which  the  prosecution  grew.  In  S'/wcdv.  People 
the  court,  speaking  of  the  right  of  the  prosecuting  attorney  to 
employ  counsel  to  assist  him  in  the  prosecution  of  a  criminal 
action,  and  stating  that  the  service  so  rendered  would  be  a 
proper  charge  against  the  county,  and  that  the  counsel  so  em- 
ployed are  acting  for  and  on  behalf  of  the  public,  as  much  so 
and  with  as  much  impartiality  as  the  prosecuting  attorney, 
then  add:  "  It  is  quite  different,  however,  where  such  counsel 
are  employed  by  the  complaining  witnes  or  the  party  injured 
or  b}'  private  individuals.  Counsel  so  employed  can  in  no  fair 
sense  be  said  to  be  employed  by  or  on  behalf  of  the  people, 
even  though  the  prosecuting  attorney  may  consent  to  or  even 
request  that  counsel  be  so  employed."  In  the  courts  of  Texas 
and  Kansas  counsel  employed  by  private  parties  have  been 
permitted  to  appear  and  assist  in  the  prosecution  of  criminals. 
The  Texas  courts  say  it  has  been  the  practice  to  permit  pri- 
vate counsel  to  appear  in  criminal  cases  from  the  earliest  his- 
tory of  the  state,  and  justify  the  continuance  of  the  custom, 
on  the  ground  that  the  legislature,  knowing  of  the  custom,  had 
not  seen  lit  to  prohibit  it.  B^irllmrd  v.  State,  18  Tex.  A\)\)., 
599-618.     In  Kansas  the  practice  seems  to  have  been  tolerated 


■A 


BIEMEL  V.  STATE. 


563 


in  the  case  of  Slate  v.  Wilson,  21  Kan.,  189,  and  in  Maine  the 
court,  witliout  expressly  approving  the  practice,  refused  to  re- 
verse a  judgment,  where  an  attorney  was  permitted  to  assist 
on  the  trial,  who  had  been  spoken  to  by  private  persons  to 
assist;  but  on  the  trial  the  counsel  who  had  been  so  spoken  to 
by  the  private  parties  declared  that  he  had  no  agreement  for 
compensation,  and  should  leave  the  question  of  compensation 
to  the  will  of  those  who  had  requested  him  to  appear  in  the 
case.    State  v.  Bartlett,  55  Me.,  200-204.    Among  the  conflict- 
ing opinions  of  the  courts  upon  the  propriety''  or  impropriety 
of  permitting  counsel  employed  by  private  persons  to  assist 
the  district  attorney  in  the  trial  of  criminal  actions,  where  the 
punishment  is  imprisonment  in  the  state  prison,  we  are  inclined 
to  hold  that  under  the  laws  of  this  state,  since  the  legislature 
has  given  the  trial  judge  the  power  of  appointing  assistant 
counsel,  where  he  thinks  the  public  interest  requires  it,  and 
providing  that  such  assistant  counsel  shall  be  paid  out  of  the 
public  funds,  counsel  should  not  be  permitted  to  appear  in  the 
case  even  at  the  request  of  the  district  atlorne}',  when  it  ap- 
pears that  such  counsel  have  been  employed  to  appear  by  pri- 
vate parties,  at  whose  request  such  counsel  appears  in  the  case, 
and  from  whom  he  expects  to  receive  compensation  for  his 
services.     The  cases  in  this  court  cited  by  tlie  attorney  general 
{^Lawrence  v.  State,  50  Wis.,  507,  and  liounds  v.  State,  57  Wis., 
45),  are  not  in  conflict  with  this  ruling,  and  the  cases  both 
arose  previous  to  the  enactment  of  chapter  354,  Laws  1887. 
It  is  said  that  chapter  354,  Laws  1887,  is  not  applicable  to  the 
municipal  court  of  Milwaukee  or  to  tlie  judge  thereof.     We 
think  it  does  apply  to  that  court  and  the  judge  thereof.    It  is 
a  general  law  regulating  the  trial  of  criminal  cases  in  circuit 
courts,  and  all  such  laws  are  made  applicable  to  the  munic- 
ipal court  of  Milwaukee  county.     See  sec.  2,  ch.  250,  Laws 
1879;  State  v.  Ilirth,  67  Wis.,  308.     ILid  the  learned  judge  of 
the  municipal  court,  acting  under  the  authority  of  chapter  354, 
Laws  1887,  appointed  Mr.  Austm  as  counsel  to  assist  the  dis- 
trict attorney  in  the  prosecution,  notwithstanding  his  previous 
employment  by  private  parties,  and  Mr.  Austin  had  accepted 
such  appointment  and  acted  under  it,  a  different  question 
would  be  presented.     It  might  be  urged  that  in  such  case  the 
acceptance  of  the  appointment  by  the  counsel  and  acting 


l\ 


Hi 
4I 


564 


AMERICAN  CRIMINAL  REPORTS. 


under  it  would  be  a  renunciation  of  liis  previous  employment, 
and  his  services  thereafter  rendered  would  be  solely  for  the 
state,  and  the  only  compensation  he  could  legally  demand 
would  be  that  provided  by  the  act  of  1887.  But  the  learned 
judge  declined  to  act  under  the  law,  and  permitted  the  counsel 
to  appear  on  the  mere  statement  of  the  district  attorney  that 
he  appeared  at  his  request,  after  the  defendant  had  offered  to 
prove  that  he  was  employed  by  private  parties,  and  with  the 
expectation  of  receiving  his  sole  compensation  for  his  service 
from  said  private  persons.  In  such  case  we  think  he  was  not 
a  proper  attorney  to  prosecute  the  case  ou  behal"  of  the  state. 
For  this  error  the  judgment  of  the  municipal  cou  c  is  reversed, 
and  the  cause  is  remanded  for  a  new  trial. 


Roberts  v.  State. 

(Ill  Ind.,  310.) 

Practice:  Recalling  jury  for  further  instructions  in  absence  of  accused. 

Instructing  jury  in  absence  of  accused.— It  is  reversible  error,  under 
the  Revised  Statutes  of  Indiana  of  1881,  section  1780,  entitling  a  pris- 
oner, tried  for  an  offense  punisliable  by  doatii  or  iniprisonuR-nt  in  t!)e 
state  prison  or  county  jail,  to  be  personally  present  during  !iL<  f.  !. 
for  the  trial  court,  upon  trial  of  a  prosecution  for  felon^'^,  to  r--'  .•  ■.  . 
jur3',  and  give  an  instruction  withdrawing  and  correcting  a  iV.r  i.c-. 
struction,  in  the  absence  of,  and  witiiout  notice  to,  the  accus  .d 

Appeal  from  Circuit  Court,  Vigo  County, 

John  R.  Courtney,  for  appellant. 

Z,  T.  Mechener,  attorney-general,  for  the  state. 

ZoLLAKs,  C.  J.  Appellant  was  convicted  upon  a  charge  of 
burglary,  and  sentenced  to  the  state  prison  for  a  period  of 
seven  years.  The  seventh  instruction  given  by  the  court  was 
as  follows:  "  Under  the  evidence  in  this  cause,  if  you  (Ind  the 
defendant  guilty,  it  is  an  aggravated  burglary,  and  you  have 
a  right  to  fix  a  proper  penalty."  That  the  instruction  was 
erroneous,  because  it  invaded  the  ])rovince  of  the  jury,  and 

1  See  note. 


?!' 


ROBERTS  V.  STATE. 


565 


was,  in  effect,  an  instruction  to  them  to  inflict  a  severe  pen- 
alty, seems  clear.  For  analogous  cases  see  Cline  v.  Zindsey, 
110  Ind.,  337,  and  cases  there  cited.  After  the  jury  retired, 
and  had  had  the  case  under  consideration  for  some  time,  the 
trial  court  had  them  recalled  to  the  court  room;  and,  having 
stated  to  them  that  he  had  given  the  above  instruction,  repeat- 
ing it,  instructed  them  further  as  follows:  "  I  want  to  say  to 
you  that  I  guess  this  is  not  correct,  and  you  will  disregard  it. 
It  is  a  question  for  the  jury  to  determine  the  nature  of  the 
crime,  and  the  punishment  they  will  inflict  therefor."  The 
foregoing  was  clearly  an  instruction.  To  withdraw  a  charge 
given,  and  instruct  the  jury  that  it  is  not  the  law,  and  should 
be  disregarded  by  them,  is  as  much  an  instruction  as  the  giv- 
ing of  the  charge  in  the  first  place.  Here  not  only  was  the 
instruction  withdrawn  as  not  being  the  law,  but  the  jury  were 
further  instructed  that  it  was  for  them  to  determine  the  nature 
of  the  crime,  and  the  punishment  to  be  inflicted.  See  Stephen- 
son V.  State,  110  Inil.,  358.  When  the  jury  retired  in  the  first 
instance,  appellant  was  returned  to  the  county  jail.  He  had 
no  notice  that  the  jury  were  to  be  recalled,  nor  that  they  were 
recalled  for  further  instructions,  and  was  not  present  when 
they  were  recalled  and  the  further  instruction  given.  Was 
the  giving  of  the  instruction  in  his  absence  such  error  as  re- 
quires the  reversal  of  the  judgment? 

The  statute  pi*ovides  (sec.  1780,  R.  S.  1881)  that  no  person 
prosecuted  for  any  offense  punishable  by  death,  or  by  confine- 
ment in  the  state  prison  or  county  jail,  shall  be  tried  unless 
personally  present  during  the  trial.  In  such  cases  the  pres- 
ence of  the  defendant's  counsel  does  not  meet  the  requirement 
of  the  statute.  He  must  be  personally  present,  unless  he  in 
some  way  waives  that  right.  Such  is  the  positive  requirement 
of  the  statute.  No  court  can  dispense  with  it.  If  the  trial  or 
any  substantial  part  of  it  is  had  in  the  absence  of  the  accused, 
without  his  consent,  the  statute  is  violated  and  his  rights  in- 
vaded. Such  an  invasion  cannot  be  regarded  by  the  courts  as 
a  harmless  error.  Instructing  the  jury  is  clearly  a  part  of  the 
trial.  If  one  instruction  may  be  given  in  the  absence  of  the 
accused,  and  without  his  knowledge,  there  is  no  good  reason 
why  the  whole  of  the  instructions  may  not  be  given  in  his  ab- 
sence and  witliout  his  knowledge.    And  if  this  court,  looking  to 


■?m 


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5m 


AMERICAN  CRIMINAL  REPORTS. 


it,, 
hi 

f. 


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llr 


one  instruction  so  given,  may  say  that  the  giving  of  it,  in  the  ab- 
sence  of  the  accused,  did  not  affect  his  substantial  rights,  and 
was  therefore  a  harmless  error,  there  would  seem  to  be  no  good 
reason  why,  looking  to  all  of  the  instructions  in  the  case,  given 
in  the  absence  of  the  accused,  the  giving  of  them  did  not  affect 
his  substantial  rights,  and  was  therefore  a  harmless  error.  To 
treat  such  errors  as  harmless  would  be  to  entirely  overthrow 
the  statute.  Some  of  the  states  have  statutes  similar  to  ours, 
but,  whether  such  statutes  exist  or  not,  the  holdings  have  gen- 
erally been  that  the  trial  in  a  felon}'  case  cannot  proceed,  to 
any  substantial  extent,  in  the  absence  and  without  the  consent 
of  the  accused,  and  that  to  so  proceed  with  the  trial  in  his 
absence  is  an  error  for  which  the  judgment  must  be  reversed. 
1  Bish.  Crim.  Proc,  §  273;  State  v.  Wilson,  50  Ind.,  487; 
Maurerv.  People,  43  N.  Y.,  1;  Goss  v.  State,  40  Tex.,  520; 
Prine  v.  Com.,  18  Pa.  St.,  103;  State  v.  Buclmer,  25  Mo.,  107; 
State  V.  Barnes,  50  Mo.,  154;  Bolls  v.  State,  52  Miss.,  391 ;  Dodge 
V.  People,  4  Neb.,  220;  State  v.  Hughes,  2  Ala.,  102;  People  v. 
Perkins,  1  Wend.,  91 ;  Ilolliday  v.  People,  4  Gilman,  111 ;  Clark 
V.  State,  4  Humph.,  254;  1  Chit.  Crim.  Law,  411;  Graham  v. 
State,  40  Ala.,  659;  Whart.  Crim.  PI.  &  Pr.,  §  714. 

The  above  statute,  in  relation  to  the  presence  of  the  accused 
in  criminal  prosecutions,  is  no  less  emphatic  and  unqualified 
than  is  the  statute  requiring  the  court  to  charge  the  jury  in 
writing,  upon  the  request  of  the  defendant.  In  construing 
that  statute  we  have  been  constrained  to  hold  that  a  violation 
of  it,  by  giving  a  part  of  the  instructions  orally,  cannot  be 
treated  as  a  harmless  error.  The  reasoning  by  which  that 
conclusion  was  reached  is  applicable  here.  See  Stephenson  v. 
State,  supra. 

On  account  of  the  error  in  instructing  the  jury  in  the  ab- 
sence of  appellant  the  judgment  must  be  reversed. 

Other  questions  have  been  discussed,  but,  as  they  are  not 
likely  to  arise  upon  another  trial  they  need  not  be  decided. 

The  judgment  is  reversed,  and  the  clerk  is  directed  to  make 
the  proper  order  for  the  return  of  appellant. 

Note.—  In  State  v.  Kelley,  94  N.  C,  404,  it  is  held  (Smith,  C.  J.,  dissent- 
ing) that  when  a  prisoner  who  is  under  recognizance  for  his  appearance  is 
present  when  the  trial  begins,  and  afterwards,  pending  it,  voluntarily  and 
on  purpose  absents  himself,  as  wlien  he  flees  the  court,  he  must  be  deemed 


ROBERTS  r.  STATE. 


567 


to  have  waived  his  right  to  be  present  during  the  remnindei  of  t'le  trial, 
while  he  is  bo  absent,  and  will  not  be  entitled  to  be  discharged  o.  tO  have  a 
new  trial  because  he  was  so  absent.  In  sucli  case  he  lias  fair  opportunity 
to  be  present,  and  he  ought  to  bo  as  matter  of  duty.  If  he  is  not,  by  the 
stringent,  if  not  conclusive,  implication,  he  consents  to  be  and  is  volunta- 
rily absent,  and  waives  his  right.  He  has  no  right  to  flee.  He  is  bound  not 
to  do  so.  He  flees  at  his  peril,  and  is  justly  held  to  take  the  consequences 
of  his  unlawful  conduct.  It  would  savor  of  absurdity  and  positive  injustice, 
where  a  party  charged  with  crime  thus  flees,  to  allow  him  to  take  advan- 
tage  of  his  own  wrong,  and  obtain  his  discharge  of  a  new  trial. 

A  party  charged  with  a  felony  less  than  capital  has  the  right  to  give  bail 
and  be  at  large,  unless,  at  the  trial,  the  court  shall  order  him  into  close  cus- 
tody. In  such  cases,  if  the  defendant  flee  pending  the  trial,  the  court  is  not 
bound  to  stop  the  trial  and  discharge  the  jury,  and  thus  give  the  defendant 
a  new  trial.    See,  also,  Ilair  v.  State,  4  Am.  Cr.  R.,  137. 

In  State  v.  Jones,  70  Iowa,  505,  one  of  the  grounds  of  defendant's  motion 
for  a  new  trial  was  that  the  plea  of  "  not  guilty,"  on  which  he  was  tried, 
was  entered  by  the  counsel  who  appeared  for  him,  and  that  he  was  not 
personally  present  in  court  when  the  plea  was  entered.  It  is  provided  by 
statute  (Code,  j^  4UG1)  that  "  the  plea  of  guilty  can  only  be  put  in  by  the 
defendant  himself  in  open  court."  But  there  is  no  special  provision  with 
reference  to  the  entry  of  the  plea  of  "  not  guilty,"  except  that  contained  in 
section  4307,  which  requires  the  court  to  enter  that  plea  when  the  defend- 
ant refuses  to  answer  the  indictment.  It  is  a  very  common  practice  for 
counsel  to  put  in  the  plea  for  the  defendant,  and  this  is  often  done  in  his 
absence,  and  we  think  this  practice  is  perfectly  proper.  No  possible  preju- 
dice could  result  to  the  defendant  from  it.  But,  if  the  practice  should  be 
regarded  as  irregular,  we  could  not  disturb  the  judgment  in  the  present 
case  on  this  ground,  for  the  defendant  had  every  advantage  and  privilege 
on  the  trial  which  he  would  have  enjoyed  if  the  plea  had  been  regularly 
entered ;  and  we  have  held  that  we  will  not  reverse  the  judgment  when  the 
trial  has  been  regularly  conducted  in  every  respect,  even  though  the  plea,  of 
"  not  guilty  "  had  not  in  fact  been  put  in.  State  v.  Oreene,  66  Iowa,  11 ; 
State  V.  Hayes,  67  Iowa,  27. 

The  presence  of  the  accused  being  once  shown  by  the  record,  it  will  be 
presumed  to  have  continued  to  the  end  of  the  trial,  unless  the  contrary  is 
shown.  Folden  v.  State,  13  Neb.,  328.  When  the  record  shows  that,  after 
the  verdict  as  announced  was  entered  and  read,  the  accused  was  remanded 
to  the  custody  of  the  sheriff,  and  the  record  shows  the  presence  of  the  de- 
fendant at  all  times  during  the  trial,  it  is  conclusive  evidence  of  his  presence 
when  the  verdict  was  rendered.  People  v.  Jung  Qung  Sing  (Cal.),  11  Pac. 
Rep.,  755. 

The  accused  is  not  entitled  to  be  present,  after  his  conviction,  at  further 
interlocutory  proceedings,  as  at  the  disposition  of  a  motion  for  a  new  trial 
(People  V.  Ormsby,  48  Mich.,  494),  nor  before  the  trial,  at  a  motion  prelim- 
inary thereto.    Epps  v.  State,  102  Ind.,  639. 


568 


AJIERICAN  CRIMINAL  REPORTS. 


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m. 


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People  v.  Chapman. 

(92  Mich.,  280.) 

Rape  :  Husband  aa  accessory  to  the  crime. 

1.  Husband  as  accessory  to  rape  on  his  wife.— A  husband,  desiring 

to  obtain  a  divorce  from  his  wife,  employed  u  man  to  seduce  her  while 
be  could  be  a  witness.  The  man,  not  bein^^  able  to  accomplish  bis 
purpose  by  persuasion,  resorted  to  force,  and  raped  the  woman,  who 
screamed  and  endeavored  to  protect  herself,  while  the  husband  stood 
by  in  a  concealed  place,  and  not  only  refused  to  assist  hci,  hut  subse- 
quently filed  a  petition  for  divorce  on  the  uroutiJ  of  his  wife's  adul- 
tery on  this  occasion.  The  husband,  under  these  circumstances,  was 
held  to  be  guilty  of  rape. 

2.  Depositions  —  Failurf.  of  deponent  to  subscribe.— Where  the  tes- 

timony of  witnesses,  at  a  preliminary  hearing  of  one  charged  with  a 
felony,  is  reduced  to  the  form  of  a  deposition,  a  failure  to  rciul  the 
evidence  thus  recorded  to  the  persons  giving  it,  and  get  their  signa- 
tures to  the  same,  is  a  fatal  defect,  and  avoids  all  subse(juent  proceed- 
ings. 

3.  Defects  —  Amendment. —  A  justice  of  the  peace  who  fails  to  secure  the 

signature  of  witnesses  whose  testimony  has  been  reduced  to  a  deposi- 
tion has  no  power  to  amend  the  defect  three  months  after  the  deposi* 
tious  were  taken. 

Error  to  Wayne. 

Moses  7u(/ert,  attorney-general,  for  the  people. 
Allan  II.  Frazer,  for  respondent. 

Morse,  J.  Under  our  statutes,  which  render  all  persons 
aiding,  assisting  or  abetting  in  the  commission  of  a  crime, 
whether  present  or  not  present,  liable  to  indictment,  trial 
and  punishment  as  principals,  the  respondent  was  proceeded 
against,  tried  and  convicted  of  rape  upon  the  person  of  his 
wife,  Maggie  Chapman.  How.  St.,  §  9545.  At  the  time  of 
the  trial  the  alleged  actual  perpetrator  of  the  crime,  James 
Reagan,  had  been  convicted  of  the  offense,  and  the  testimony 
of  defendant's  guilt  was  mainly  derived  from  his  evidence  and 
that  of  the  wife. 

The  principal  objection  goes  to  the  merits  of  the  case.  It  is 
claimed  by  defendant's  counsel,  in  an  elaborate  argument, 
that  the  evidence  does  not  warrant  the  conviction  of  the  defend- 
txxii.    The  theory  of  the  prosecution  was  that  an  agreement 


PEOPLE  V.  CHAPMAN. 


509 


was  mado  between  the  respondent  and  Reagan  that,  if  the 
husband  could  catch  Reaga.^  in  bed  with  Mrs.  ("liapman,  or  in 
the  act  of  sexual  intercourse,  by  which  the  husband  would  bo 
furnished  with  evidence  to  obtain  a  divorce  from  his  wife  on 
the  ground  of  adultery ,  Reagan  should  bo  paid  625  by  re 
spohdent;  that,  in  pursuance  of  this  plan,  Jeremiah  Chapman 
and  Oscar  Chapman,  a  brother  of  the  accused,  went  into  a 
room  of  the  house  where  respondent  lived,  and  bored  a  hole 
through  the  partition,  where  they  could  see  into  the  part  of 
the  house  where  the  wife  was,  or  peeped  through  a  partly- 
opened  door;  that  Reagan  went  in  and  committed  a  rape  upon 
Mrs.  Chapman,  who  resisted  the  outrage,  but  not  successfully; 
that  the  husband  and  his  brother  heard  her  screams,  and  wit- 
nessed her  struggles  without  offering  to  interpost)  in  her  aid; 
that  Reagan  knew  they  were  there  watching  him;  and  that 
after  l!iu  crime  was  committed,  or  just  at  its  completion,  the 
respondent  and  Oscar  burst  into  the  room,  the  husband  ex- 
claiming, "Now  I  have  caught  you.''  The  defendant  and  his 
brother  testified  and  maintained  that  no  such  bargain  was  en- 
tered into  with  Reagan;  but  on  the  contrary,  the  husband  be- 
ing jealous  and  suspicious  of  his  wife,  they  hid  in  the  house 
for  the  purpose  of  verifying  such  mistrust;  that  Mrs.  Chap- 
man was  a  willing  participant  in  adultery  with  Reagan;  and 
that  while  they  were  in  the  act,  they  rushed  into  the  room, 
respondent  grabbing  a  chair,  saying,  "I  have  caught  you  now 
right  in  the  act;  I  have  a  notion  to  paralyze  both  of  you." 

The  argument  of  the  defendant's  counsel  is  that  the  crime 
advised  and  bargained  for  with  Reagan  by  respondent  was  not 
the  crime  committed,  but  adultery,  and  that  the  mere  pres- 
ence of  the  husband  in  the  adjoining  room,  without  any  par- 
ticipation whatever  in  the  offense,  could  not  make  him  guilt}'^ 
of  Reagan's  independent  crime;  that  his  mental  approbation 
was  not  sufficient,  but  his  assent,  to  come  within  the  statute, 
must  have  been  manifest  by  some  act  of  assistance  in  the  per- 
petration of  the  rape.  We  are  cited  to  a  number  of  authori- 
ties as  sustaining  these  propositions.  Not  one  of  them  is 
applicable  to  the  present  case.  If  they  were  they  would  not 
be  authority  for  this  court. 

If  the  story  of  Maggie  Chapman  be  true,  and  it  appears  she 
has  convinced  twenty-four  men  of  its  truthfulness  beyond  a 


1 1 1  ? 


670 


AMERICAN  CRIMINAL  REPORTS. 


mi 


iU 


iii 


4 


reasonable  doubt,  this  husband  is  guilty  of  sufficient  aid  in  the 
commission  of  the  foulest  of  crimes  to  warrant  his  conviction 
as  a  principal  under  our  laws.  She  testifies  that  Itea^an 
caught  her  by  the  tliroat,  threw  her  down,  and  forced  her  to 
submit  to  his  lust;  that  she  tried  her  best  to  push  him  away 
and  prevent  him  from  accomplishing  his  design,  and  hallooed 
for  help;  that,  when  her  husband  came  in,  slie  said  to  him, 
"Oh,  dear,  kill  him!"  but  respondent  pushed  her  away  from 
him,  and  soon  thereafter,  ho,  his  brother  Oscar,  and  Reagan 
went  away  together  apparently  on  friendly  terms. ,  It  appears 
also  that  in  three  days  after  the  commission  of  the  rape  or 
adultery,  as  the  case  may  be,  the  respontlent  filed  his  bill  for 
divorce  upon  the  ground  of  the  adultery  of  his  wife  with  Rea- 
gan. He  took  no  steps  to  prosecute  Reagan,  and  a  brother  of 
Mrs.  Chapman  testified  that  soon  after  the  alleged  rape  he 
had  a  conversation  with  respondent  in  which  the  brother  asked 
him,  "Why  didn't  you  shoot  him?"  Chapman  replied,"! 
didn't  want  to  shoot  him."  The  brother  then  asked  him  if  he 
was  a  friend  to  Reagan,  and  he  said  he  was. 

The  cases  and  text-books  cited  by  defendant's  counsel  lay 
down  the  general  doctrine,  which  is  correct  in  principle,  that 
the  mere  presence  of  a  person  when  a  murder  or  rape  is  being 
committed,  without  any  previous  agreement  or  conspiracy  in 
furtherance  of  the  crime,  and  doing  nothing  by  word  or  act 
to  encourage  or  sanction  the  perpetration  of  the  same,  will  not 
hold  him  in  the  law  in  any  degree  guilty  of  the  particular 
crime  committed,  although  by  his  iiiterference  he  might  have 
prevented  it.  Such  person  may  not  be  entirely  guiltless  in 
the  eyes  of  the  law,  as  the  promptings  of  humanity,  as  well 
as  his  duty  to  society,  demand  that  he  shall  use  such  means 
as  ho  can  to  prevent  injury  and  wrong  to  his  fellows;  and, 
under  the  common  law,  if  of  full  age,  such  presence,  without 
endeavor  to  hinder  the  commission  of  the  felony,  or  to  ap- 
prehend the  offender,  was  highly  criminal,  and  punishable 
by  fine  and  imprisonment.  But  it  did  not  make  him  guilty, 
either  as  principal  or  accessory,  of  the  crime  thus  commit- 
ted in  his  presence.  2  Hawk.  P.  C,  p.  442,  §  10;  1  Hale, 
P.  C,  439;  Steph.  Sum.  Crim.  Law,  ch.  3,  p.  7.  But  the  case 
at  bar  is  one  in  which  aid  and  assistance  were  rendered. 
The  husband  was  not  a  mere  passive  looker-on  in  the  pro- 


PEOPLE  V.  CHAPMAN. 


671 


lid  in  tlio 

onviction 

liea^'an 

lil  hor  to 

im  a  way 

liallooed 

to  him, 

vay  from 

ReajLj:an 

appears 

rape  or 

s  bill  for 

vitli  Rea- 

•rotlier  of 

rape  ho 

lior  asked 

plied,  "  I 

liini  if  he 

unsel  lay 
il)le,  that 
}  is  being 
piracy  in 
•d  or  act 
!,  will  not 
)articular 
jht  have 
iltless  in 
%  as  well 
ih  means 
ws;  and, 
,  without 
•r  to  ap- 
mishable 
n  guilty, 
commit- 
1  Hale, 
the  case 
endered. 
the  pro- 


ceedings. Reagan  knew  he  Avas  in  the  next  room,  in  sight 
of  his  work;  and  when  the  wife  screamed,  and  respondent  did 
not  interfere,  he  knew  that  the  husband  was  willing  he  should 
succeed  in  the  accomplishment  of  the  intercourse  by  force,  if 
necessary,— an  intercourse  which  had  been  bargained  for  by 
the  husband.  And  the  presence  of  the  husband  in  the  next 
room,  waiting  to  catch  the  parties  together,  known  to  Reagan, 
both  as  to  the  presence  and  the  purpose  of  such  presence,  im- 
parted to  him  a  conlidence  in  his  undertaking.  And  the  hus- 
band intentionally  gave  reason  for  such  conlidence.  By  the 
lifting  of  his  finger  or  the  opening  of  his  mouth  he  could  have 
l)revented  the  injury  to  his  wife,  but  lie  did  not  do  so.  And 
he  was  ready  to  pay  for  the  services  of  Reagan,  and  to  profit 
by  his  crime.  Rengan  swears  that  he  told  him  that  evening, 
after  the  transaction,  as  the  three,  respondent,  Oscar  and  him- 
self, were  going  over  to  Miller's,  "  You  are  the  boy;  I  will  pay 
you  for  this;"  and  in  a  very  few  days  respondent  filed  his 
complaint  for  divorce,  alleging  the  adultery  of  bis  wile  with 
Reagan  for  his  cause.  This  conduct  is  corroborative  of  the 
claim  that  he  hired  Reagan  to  commit  the  crime  of  adulter}', 
and  that  he  was  well  satisfied  with  the  rape  instead,  if  it  could 
be  used  to  accomplish  his  main  design,  which  was  the  putting 
away  of  his  wife.  By  his  presence  and  his  silence,  under  the 
fact  of  his  previous  agreement  with  Reagan,  ho  must  be  con- 
sidered as  having  countenanced  and  encouraged  the  latter  in 
the  commission  of  the  outrage  ui)on  his  wife.  lie  did  this  as 
effectually  as  if  he  had  stood  in  the  room,  and  said  to  Reagan, 
"Go  ahead;  you  shall  have  the  money  the  same  whether  it  be 
by  force  or  consent."  If  he  had  done  this,  there  would  have 
been  no  possible  doubt  of  his  guilt  as  a  principal  of  the  same 
crime  as  Reagan. 

In  this  case  the  defendant  and  Reagan  conspired  to  do  an 
unlawful  act;  the  one  to  commit  a  crime,  and  the  other  to  pay 
him  for  it,  to  be  present  where  he  could  witness  its  perpetra- 
tion, and  to  use  the  crime  to  his  advantage  in  getting  rid  of 
an  undesired  wife.  If  Chapman  had  conspired  with  Reagan 
to  rob  a  person,  Reagan  to  commit  the  crime  and  Chapman  to 
be  present  and  share  in  the  plunder,  and  in  the  act  of  robbery 
it  became  necessary,  or  Reagan  supposed  it  did,  to  murder  the 
person  in  order  to  accomplish  the  robbery,  and  Chapman  had 


!  .  -ll 


572 


AMERICAN  CRIMINAL  REPORTS. 


im 


'^Vv 


':l^ 


if 


stood  by,  perfectly  passive,  but  sharing  in  the  spoils  of  the 
transaction,  would  he  not  have  been  guilty  of  the  murder? 
Most  assuredly  he  would.  The  malice  and  assistance  would 
be  presumed.  I  cannot  see  any  distinction  between  such  a 
case  aud  the  one  before  us,  except  that  the  moral  guilt  in  the 
case  at  bar  far  exceeds  in  turpitude  that  of  the  supvioscd  one. 
A  husband  who  could  barter  with  another  for  the  despoiling 
of  his  wife's  virtue,  and  stand  by  to  witness  it  with  his  brother, 
and  remain  passive  and  silent  while  such  object  was  obtained 
by  violence,  and  then  use  such  permitted  and  encouraged  rape 
to  divorce  her  from  him,  and  by  this,  and  perjury  added,  pub- 
lish her  to  the  world  as  an  adulteress,  is  morally  guilty  of  as 
foul  a  crime  as  can  be  named  in  the  calendar.  The  olFenso  of 
Eeagan,  heinous  as  it  is,  sinks  into  insignificance  beside  it.  To 
hold  the  respondent  guiltless  of  rape  would  deprive  him  of  the 
punishment  he  richly  deserves,  if  the  story  of  his  wife  can  be 
believed.  There  is  no  adequate  punishment  for  such  a  crime 
as  his,  unless  he  can  be  held  as  a  principal  with  Keagan.  And 
the  law  will  support  his  conviction  upon  the  facts  which  the 
jury  must  have  found  to  be  true. 

It  is  said  by  the  supremo  court  of  Iowa  in  one  of  the  cases 
cited  in  the  brief  of  the  counsel  for  respondent  {State  v.  Farr, 
33  Iowa,  501),  "  If  it  had  been  preconcerted  between  A.  J. 
Farr  and  the  defendant  to  go  to  the  mill  for  the  purpose  of 
drawing  Graham,  the  deceased,  into  a  quarrel,  with  a  view  of 
inflicting  upon  him  some  bodily  injury,  and  the  killing  had  re- 
sulted in  pursuance  of  such  plan,  then  the  defendant  would 
have  been  alike  guilty  with  A.  J.,  the  ))erpetrator  of  tiie  deed." 
On  the  trial  of  Charles,  Lord  Mohun,  before  the  house  of  lords 
in  the  year  1G92  (12  How.  St.  Trials,  949,  case  371),  for  the 
murder  of  William  Mountford,  this  question  was  submitted  to 
the  judges:  "Whether  a  person,  knowing  of  the  design  of  an- 
other to  lie  in  wait  to  assault  a  third  man,  v)ho  happened  t^  he 
killed  when  the  person  who  knew  of  the  design  is  jiresent,  be 
guilt}^,  in  law,  of  the  same  crime  with  the  party  who  had  the 
design  and  killed,  though  he  had  no  actual  hand  in  his  death." 
Lord  Chief  Justice  Holt  answered  for  the  judges:  "  ]My  Lords, 
I  am  of  opinion  this  is  no  murder  or  manslaughter,  lie  that 
knew  of  the  design  of  assaulting  only  happened  to  he  present 
when  the  assault  was  made  and  the  party  killed;  but,  if  he 


PEOPLE  V.  CHAPMAN. 


678 


ils  of  the 

miu'dor  ? 

ce  would 

in  such  a 

lilt  in  the 

oscd  one. 

lospoiliiiii; 

s  brother, 

i  obtained 

iged  rape 

(led,  pub- 

ilty  of  as 

olFense  of 

ideit.   To 

lim  of  the 

"e  can  be 

h  a  crime 

3^in.  And 

vhich  the 

the  cases 
'J  V.  Farr^ 
3en  A.  J. 
urposo  of 
a  view  of 
ig  had  re- 
nt would 
he  deed." 
0  of  lords 
),  for  the 
niitted  to 
gn  of  an- 
ci\ed  t  :•  he 
resent,  be 
►  had  the 
is  death." 
ly  Lords, 
lie  that 
*e  present 
but,  if  he 


did  not  contribute  to  his  death,  he  is  not  guilty  of  murder; 
.  .  .  but  if  the  person  that  knew  of  this  design  did  advise 
it,  or  agree  to  it,  or  lay  in  wait  for  It,  or  resolved  to  meet  the 
third  person  that  vms  killed,  it  wovhl  he  mnrdcry  See,  also,  1 
Bish.  Crim.  Law  (7th  ed.),  §§  G3(],  041;  1  Russ.  Cr.  (9th  ed.), 
54,  55;  1  Whart.  Crim.  Law  (7th  ed.),  §  IIG;  2  Hawk.  P.  C, 
p.  443,  §  10;  id.,  p.  441,  ^  7;  Unitad  States  v.  Jioss,  1  Gall.,  624; 
1  East,  P.  C,  258;  1  Hale,  P.  C,  441;  Com.  v.  Campbell,! 
Allen,  541-543;  Thompson  v.  Slate,  30  Ala.,  28;  Brennan  v. 
Peojjle,  15  111.,  511.  Bishop  lays  down  the  rule,  in  his  view, 
thus:  "Every  man  is  responsible  criminally  for  whatof  wrong 
flows  directly  from  his  corrupt  intentions;  but  no  man  intend- 
ing wrong  is  responsible  for  an  independent  act  of  wrong  com- 
mitted by  another.  If  one  person  sets  in  motion  the  physical 
power  of  another  person,  the  former  is  criminally  guilty  for 
its  results.  If  he  contemplated  the  result  he  is  answerable, 
though  it  is  produced  in  a  manner  he  did  not  contemplate." 
1  Bish.  Crim.  Law,  §  041. 

The  result  aimed  at  by  the  respondent  wasse.xual  intercourse 
between  Reagan  and  his  wife,  and  the  evidence  of  it,  for  his 
use  in  a  divorce  suit,  llis  bargain  with  Keagan  was  to  fix  it 
so  that  he  v.ould  catch  Reagan  ''  in  bed  with  or  aboard  of  her." 
He  was  not  particular  in  his  agreement  how  this  was  to  be  ac- 
complished,—  whether  by  force,  or  his  wife's  full  consent.  He 
stood  b}'  and  s^aw  the  force  used.  It  is  evident  he  sanctioned 
it,  and,  under  the  circumstances,  this  sanction  was  an  encour- 
agement and  assistance  to  Reagan.  Tiie  result  bargained  for 
was  attained  by  his  corrupt  agreement  in  the  first  instance. 
and  by  his  presence  and  sanction  of  the  evil  act.  If  lie  had 
not  been  present  at  all,  I  think  he  would  luive  been  guilty, 
as  the  result  was  desired  and  prolited  by,  though  it  might 
have  been  accomi)lislied  by  force  when  he  intended  it  should 
be  obtained  without  it.  Not  only  was  he  present,  but,  by  his 
silence  and  passiveness  when  his  wife  was  ilefcnding  her 
honor,  and  his  conduct  when  he  rushed  inio  the  room  and 
afterwards,  the  irresistible  conviction  is  forced  upon  my  mind 
that  the  purpose  of  his  agreement  with  Keagan,  and  the  object 
of  his  presence  in  the  house,  were  to  (jbtain  evidence  of  the 
sexual  intercourse  of  his  wife  with  anotlicf  than  himself,  and 
that  he  cared  not  how  such  intercourse  was  obtained.    I  am 


1^^ 

S  I*  - 


A 


574 


AMERICAN  CRIMINAL  REPORTS. 


reasoning  now  upon  the  evidence  of  the  wife  and  Reagan; 
and,  if  their  testimony  be  true,  of  which  I  am  not  to  judge, 
the  respondent  is  guilty  as  charged,  under  every  principle  of 
law  as  well  as  morals. 

The  court  correctly  charged  the  jury  that  if  they  found  be- 
yond a  reasonable  doubt  that  there  was  an  agreement  between 
Chapman  and  Reagan  that  Reagan  should  "  be  caught  by  Jerry 
Chapman  in  bed  with  Mrs.  Chapman,  or  on  board  of  her,  as 
the  witness  Reagan  puts  it,  and  in  pursuance  of  that  agree- 
ment Reagan  committed  the  crime  of  rape  upon  Mrs.  Chap- 
man, and  Jerry  Chapman,  the  defendant,  was  present  in  an 
adjoining  room,  in  pursuance  of  that  agreement,  with  the  door 
partly  open,  and  witnessed  and  sanctioned  the  act  of  rape 
when  it  was  committed,  then  the  defendant  was  guilty  of 
rape." 

And  the  question  of  the  worth  and  reliability  of  Reagan's 
testimony  was  submitted  to  the  jury  by  the  court  in  as  strong 
'anguage  as  the  defendant  could,  under  the  law,  reasonably 
Jesire.  The  circuit  judge  said:  "A  man  who  acknowledges 
that  he  is  guilty  of  a  crime  of  this  kind,  and  by  his  testimony 
implicates  others  in  the  crime,  is  not  entitled  to  credit  as  an 
ordinary  witness,  when  placed  upon  the  stand  as  a  witness. 
A  witness  who  admits  that  he  has  been  guilty  of  a  crime 
of  this  kind,  for  the  consideration  of  $25,  is  a  bad  and 
dangerous  man,  and  his  testimony  should  bo  carefully  scruti 
nized.  A  witness  who  states  that  he  has  committed  perjury 
for  the  purpose  of  shielding  himself  is  a  dangerous  witness. 
The  testimony  of  a  witness  who  has  wilfully  sworn  falsely  in 
regard  to  a  material  matter  in  the  case  raav  be  utterly  disre- 
garded  by  the  jury." 

We  have  carefully  examined  the  record,  and  can  find  no  in- 
justice done  the  defendant  upon  the  trial  by  the  rulings  upon 
the  admission  of  evidence,  or  the  charge  of  the  court.  If  he 
has  been  wronged,  it  was  by  the  action  of  the  jury,  who  heard 
not  only  all  the  testimony  we  have  before  us,  but  who  had 
the  opportunity,  denied  to  us,  of  seeing  the  witnesses,  and 
watching  and  weighing  their  conduct  and  appearance  upon 
the  stand.  We  cannot  interfere  with  their  judgment,  though 
from  the  record  we  might  have  doubts  of  his  guilt. 


fisjl  y 


Reagan ; 
to  judge, 
nciple  of 

found  be- 
between 
by  Jerry 
)f  her,  as 
lat  agree- 
rs.  Chap- 
nt  in  an 
the  door 
'  of  rape 
guilty  of 

Reagan's 
as  strons: 
jasonably 
o\v  ledges 
testimony 
id  it  as  an 
.  witness. 
'  a  crime 
bad  and 
lly  scruti 
d  perjury 
s  witness, 
falsely  in 
irly  disre- 

ind  no  in- 
ngs  upon 
•t.  If  he 
r'ho  heard 
who  had 
sses,  and 
nee  upon 
t,  though 


PEOPLE  V.  CHAPMAN. 


575 


?fF*- 


A  serious  difiBculty  arises,  however,  when  we  consider  the 
manner  of  the  preliminary  examination  of  the  accused  upon 
which  he  was  held  to  trial  in  the  circuit.    It  appears  without 
any  contradiction  that,  during  the  examination  of  the  respond- 
ent, and  at  its  close,  before  Irving  T.  Wood,  a  justice  of  the 
peace,  residing  in  Brownston,  the  depositions  of  the  witnesses 
were  not  subscribed  by  them.   The  depositions  so  taken  by  the 
justice  were  returned  by  him  to  the  circuit  court  without  sign- 
ing by  the  witnesses,  or  the  reading  of  their  testimony  to  them. 
The  examination  closed  January  15,  ISSl,  and  the  return  was 
filed  in  the  county  clerk's  otfice  January  21,  1884.    The  defect 
was    discovered  by  the  prosecuting  attorney   some  time  in 
March,  1884,  when  the  depositions  were  taken  by  the  sheriff 
to  the  justice,  and  some  of  the  witnesses  seen  at  their  homes 
and  other  places,  and  their  signatures  procured  to  their  dep- 
ositions,  but  without  reading  their  testimony,  or  having  it 
read  to  them.     The  justice  attached  liis  jurat,  certifying  that 
the   same  was  sworn  to  and  subscribed  on  the  15th  day  of 
January,  ISS-t.     No  oath  was  administered  to  any  of  them  at 
tlie  time  of  signing.     Among  those  whose  signature  was  thus 
obtained    was  Maggie   Chai)man,  defenuant's  wife,    without 
whoso  testimony  tho  defendant  could  not  have  been  held  to 
trial,  as  Reagan  upon  the  examination  testified,  in  harmony 
with  the  theory  of  the  defendant,  that  his  wife  was  willing. 

In  tlie  circuit  court  the  defendant  stood  mute,  and  refused 
to  |)lead,  and  a  plea  of  "  not  guilty"  was  entered  by  order  of 
the  court. 

During  the  trial,  upon  a  showing  of  the  facts  above  stated, 
the  deieiulaiit's  counsel  moved  to  (juash  the  information  upon 
the  ground  that  there  had  been  no  preliminary  examination 
as  required  by  statute,  and  no  waiver  of  tho  same. 

It  was  hold  in  People  v.  Smith,  25  Mich.,  497,  that,  unless 
the  depositions  were  signed  by  the  witnesses  as  required  by 
the  statute,  they  were  essentially  defective,  and  that  they 
stood  without  authentication,  and,  as  a  basis  for  the  informa- 
tion and  other  jn-oceedings,  were  mere  hearsay. 

The  information  was  not  filed  in  this  cause  until  after  the 
depositions  had  been  signed  by  the  witnesses,  and  returned  to 
the  clerk's  olhce  by  the  justice.    In  this  only  does  it  differ 


I 


8    ' 

it 


676 


AMERICAN  CRIMINAL  REPORTS. 


?;    f 


iKi 


from  People  v.  Smith.  In  that  case  the  depositions  were  un- 
signed when  the  information  was  filed,  and  at  the  time  of 
trial  and  conviction  of  the  accused.  The  statute  does  not,  in 
express  terms,  require  the  depositions  taken  down  bv  the  mag- 
istrate upon  the  examination  to  be  read  over  to  the  witnesses 
before  signing,  but  such  is  the  common  practice,  and  should 
be  required.  How.  St.,  §  9409.  If  the  language  of  the  wit- 
ness, as  taken  by  the  magistrate,  is  not  read  to  the  witness,  or 
by  him,  before  signing,  for  the  purpose  of  correction,  there  can 
be  no  certainty  that  the  deposition  of  the  witness  so  written 
and  signed  is  as  it  was  actually  stated  under  oath.  Tiie  im- 
perfect hearing  or  understanding,  which  is  always  liable  to 
exist  when  one  is  transmitting  or  transcribing  the  language  of 
another,  may  change  entirely  the  character  of  the  evidence; 
and  the  general  inclination  to  abbreviate  what  is  said,  by  the 
writer's  undertaking  to  convey  the  same  meaning  in  less 
words,  may  ofttimes  change  the  sense  unintentionally.  The  ob- 
ject to  be  served  by  an  examination  would  perhaps  l)e  defeated 
if  the  witness  is  not  only  permitted,  but  recjuired,  to  know  be- 
fore siffninir  what  the  nui^istrate  has   written.     Without  it 

DO  O 

there  could  scarcely  be  a  conviction  for  perjury  if  the  witness, 
upon  the  trial,  should  see  lit  to  materially  change  his  testi- 
mony, as  Heagan  did  in  this  case. 

But,  besides  this,  the  defect  is  radical  in  this  case.  The  de- 
fendant was  held  to  trial  without  any  jireliminary  examina- 
tion under  the  statute.  AV  e  <lo  not  mean  to  hold  tiiat  the 
neglect  to  have  one  or  more  witnesses  sign  their  depositions 
would  void  an  examination,  provided  there  was  sullieient  testi- 
mony to  bind  him  over  from  witnesses  wlio  had  subscribed 
their  depositions.  Uut  here  Chapman  could  not  have  been  held 
if  the  testimony  of  his  wife  had  been  expunged  from  the 
record,  as  Ileagan  ujKjn  the  examination  swore  that  his  inter 
course  with  her  was  by  her  consent.  Xor  do  we  think,  after 
the  justice  had  made  his  return,  in  January,  to  the  circuit, 
that  he  was  authorized  to  procure  the  signatures  of  the  wit- 
nesses in  March  afterwards.  His  jurisdiction  over  the  case 
was  ended,  and  he  had  no  more  business  in  amending  the  return 
than  a  private  individual.  Foster  v.  A/den,  21  Mich.,  508; 
IlamUlon  v.  People,  29  Mich.,  170.     It  follows  that  the  con- 


HARDTKE  v.  STATE. 


677 


viction  must  be  set  aside,  and  the  respondent  discharged  from 
custody. 

CAMi'iJKf.L,  C.  J.,  and  Ciiamplix,  J.,  concurred. 

SiiKuwonn,  J.,  dissents  as  to  the  two  last  propositions  but 
concurs  as  to  the  lirst. 


IIakdtke  v.  State.^ 

(67  Wis.,  553.) 

Rape  :  Evidence  —  Penetration  —  .Admissions, 

1.  Penetration.  — On  the  trial  of  an  indictment  for  rape,  where  there  is 
no  evidence  of  penetration,  a  verdict  of  gnilty  will  be  set  aside. 

3.  ExrnuT  testimony.—  Tlie  prosecutrix,  being  a  child  twelve  years  old, 
a  <|U('stion  asked  a  piiysician  as  to  whetlier  the  privates  of  a  well- 
developed  man  could  enter  hers  is  proper. 

3.  ("HAWilNO  DEFICNDANT   WITH   ACTS  OF  TIIIRD  PERSON  WITHOUT  SHOWING 

PRIVITY. —  It  is  error  to  allow  the  prosecutrix  to  testify  what  one  M. 
told  her  to  say  about  the  injury,  when  defendant  was  not  present, 
and  was  not  shown  to  have  known  anything  about  it;  it  being  thereby 
.nssurned  without  evidence  that  M.  was  acting  for  defendant. 

4.  Leadino  questions.— The  question  asked  the  prosecutrix.  "  Was  there 

any  blood  on  j-our  underdotliing  after  this?"  is  a  leading  question, 
and  its  allow.ince  is  error. 

5.  Similar  occurrences.  — It  is  error  to  exclude  a  question,  on  cross- 

examination  of  the  prosecutrix,  as  to  "  wliethcr  this  was  the  only 
time  (k'ft.'ndant  was  ever  bad."  Such  a  qiiesUon  is  pertinent  to  show, 
as  bearing  on  the  crime  charged,  whether  there  had  been  similar  oc- 
curreiu^es  between  her  and  the  acoused. 

C.  Ineeuen(,'IN'0  witness  —  CuEnir.iLiTV.—  In  such  a  case  it  is  error  to  ex- 
clude questions  asked  the  prosecutrix  as  to  whether  the  wife  of  de- 
fendant had  not  promised  to  give  her  jiresents  if  she  would  swear 
against  him,  and  had  told  lier  to  walk  lame,  and  taught  her  toassum- 
lamt'ness.  8nch  evidence  was  competent  to  show  that  defendant's 
wife  was  influencing  tlio  prosecutrix  to  testify  strongly  against  him, 
and  would  aJl'ect  her  credibility. 

7.  Motive.—  After  it  had  apii<ared  that  the  wife  of  defendant  had  advised 
the  prosecution,  anil  told  the  prosecutrix  to  swear  against  the  defend- 
ant, (piestions  asked  a  witness  as  to  whether  defendant's  wife  ever 
told  him  anything  about  arresting  defendant,  and  whether  she  told 
witness  that  she  was  going  to  get  rid  of  defendant,  are  competent  as 


'  See  note. 


Vol.  VII  — 37 


ii|i' 


57S 


AMERICAN  CRIMINAL  REPORTS. 


ei.if 


'■■'■,''•  ■■>'','■ 


-'>-''t^'' 


>:^    'I'* 


sliowing  the  defendant's  wife's  motives  for  advisinp;  the  prosectitiix. 
It  is  also  error  to  strike  out  testimony  of  a  witness  tending  to  show 
tlie  motive  of  defendant's  wife  in  attempting  to  influence  the  prose- 
cutrix to  testify  to  certain  facts  against  the  defendant. 

8.  Extent  of  injury  — Feigning  lameness.— WluTetlie prosecutrix  liad 

testified  that  one  of  the  effects  of  the  assault  was  that  she  was  lame. 
a  question  asked  a  witness  as  to  when  lie  first  saw  her  walking  lame 
was  pertinent  to  show  whether  the  lameness  was  real  or  feigneil,  as 
bearing  on  the  nature  and  extent  of  the  injury.  Notwithstanding 
this  question  was  ruled  out,  the  witness  answered  that  "  it  was  after 
defendant's  wife  had  cautioned  us."  A  (juestion  had  been  asked 
wliether  it  was  not  in  the  presence  of  this  witness  that  defendant's 
wife  had  instructed  prosecutrix  to  walk  lame,  aTid  ruled  out  by  the 
court.  It  was  error  to  rule  out  this  answer,  as  it  tended  to  show  that 
prosecutri.x  was  feigning  lameness,  and  also  afl"e(ted  her  ( redibility. 
In  such  a  case  it  is  also  error  to  exclude  testimony  going  to  show  that 
the  prosecutrix  did  not  walk  lame  a  few  days  after  the  .nssault.  It 
was  pertinent  to  disprove  the  extent  of  the  injury  charged. 

9.  Previous  good  character.— T<stimony  temling  to  show  the  defend- 

ant's previous  good  character  is  competent,  in  order  to  show  that  it 
was  unlikely  that  such  a  person  would  commit  such  a  crime?. 
10.  Admissions  — Conduct  of  prosecuting  attorney  — Statement  to 
JURY.—  In  such  a  case  the  testimony  of  the  i)rosicutingattorney,  that, 
at  the  preliminary  examination  the  defendant  had  told  him  to  stop 
the  prosecution;  that  he  did  not  hurt  the  girl  nnicli, —  is  not  evidence 
of  tlie  crime  charged.  It  is  an  a<lmission  of  nothing  more  than  an  as- 
sault; and  a  statement  maile  by  the  prosecuting  attorney,  in  his  argu- 
ment to  the  jury,  that  the  delendant  had  conf<bsed  the  crime  to  him, 
should  have  been  corrected  by  the  court. 

Error  to  Circuit  Court  for  Taylor  Count}'. 

Plaintiff  in  error  was  convicted  of  raj;o  ond  sentenced  to 
the  state's  prison  for  ten  years.  The  facts  are  stated  in  the 
opinion. 

J.  It.  Parish,  for  plaintiff  in  error. 

JJ.  W.  CInjnowcth,  assistant  attorney-general,  for  the  defend- 
ant in  error. 


'^:':!i;J 


Orton,  J.  This  was  an  information  for  rape  upon  the  per- 
son of  Theresa  Seitz,  of  the  age  of  about  twelve  years,  by  the 
defendant,  a  married  man,  fifty-one  3'ears  of  age.  On  reading/ 
the  evidence,  and  carefully  considering  the  [iroceedingson  the 
trial,  I  cannot  but  think  that  the  defendant  was  prosecuted 
with  unusual  severity,  if  not  with  malignity.  It  seemed  to 
iiave  been  forgotten  that  the  accused  was  presumed  to  be  in- 
nocent until  conviction,  and  that  by  the  liberal,  humane  and 


HARDTKE  v.  STATE. 


579 


merciful  policy  of  our  criminal  jurisprudence  lie  should  have 
every  rij;ht  and  advantage  which  the  laws  afford  liiin.  Nearly 
every  objection  to  evidence  made  by  the  counsel  for  the  de- 
fendant was  overruled,  and  nearly  every  objection  of  the  dis- 
trict attorney  to  evidence  offered  by  the  defendant's  counsel 
was  sustained,  and  most  of  the  rulings  of  the  court  upon  the 
evidence  are  erroneous. 

1.  There  was  not  a  particle  of  evidence  in  the  case  of  pene- 
tration. The  prosecutrix  did  not  testify  to  any,  but  told  one 
of  the  female  witnesses,  soon  after  the  occurrence,  that  the 
defendant  did  not  enter  her  body,  and  the  physician  called  by 
the  state,  upon  being  aslced  if,  from  his  examination  of  the 
prosecutrix,  there  had  been  penetration,  replied,  in  effect,  that 
there  had  not  been,  and  tliat  her  hymen  was  normal;  and 
another  pl)ysician,  called  by  the  defendant  as  a  witness,  testi- 
fied that  ho  liad  never  heard  or  read  of  a  case  where  a  young 
girl  had  been  nqjet /  i\r\L\  the  hymen  remain.  It  is  true  that 
the  court,  after  ruling  that  conqilete  penetration  was  not  neces- 
sary, asked  this  witness  whether  the  least  penetration  might 
be  made  without  destroying  tho  hymen,  and  he  replied,  "1 
think  so."  I>ut  it  is  sullicient  that  there  is  no  evidence  that 
there  was  the  least  penetration. 

2.  In  connection  with  this  subject,  this  medical  witness  was 
asked  by  the  defendant's  counsel  whether  the  privates  of  a 
well-developed  man  could  have  penetrated  hers,  and  the  dis- 
trict attorney  objected  to  the  question,  and  the  objection  was 
sustained.     This  was  clearly  error. 

3.  The  prosecutrix  was  allowed  to  testify,  against  the  objec- 
tion of  the  defendant's  counsel,  what  one  Muller  told  her  to 
say  about  her  injury  when  the  defendant  was  not  present,  and 
was  not  shown  to  have  known  anything  about  it.  Muller  was 
thus  assumed  to  have  been  acting  for  the  defendant  by  his  re- 
quest, when  there  was  no  evidence  of  it. 

4.  The  district  attorney  asked  the  prosecutrix  this  leading 
question:  "Was  there  any  blood  on  your  underclothes  after 
this? "  It  was  objected  to  as  being  leading,  and  the  objection 
was  overruled,  and  the  witness  answered,  "  Yes."  There  ditl 
not  appear  to  have  been  any  necessity  or  propriety  in  asking 
such  a  leading  question,  which  so  clearly  suggested  the  answer 
to  such  a  witness  in  such  a  case. 


::.^ii 


^1' 


580 


AMERICAN  CRIMINAL  REPORTS. 


'i 


*     •■, 


5.  The  counsel  of  the  dofondant  asked  the  prosecuting  wit- 
ness, on  cross-examination,  "  whether  this  was  the  only  time 
the  defendant  was  bad."  The  meaning  was  obvious  enough, 
which  was  whether  he  had  ever  done  so  before  to  her.  It  was 
pertinent  to  show,  as  bearing  upon  such  a  crime,  whether 
there  had  been  similar  occurrences  before.  The  objection  of 
the  district  attorney  to  the  question  was  sustained.  This  also 
was  error. 

6.  The  prosecutrix  was  asked  if  she  did  not  tell  a  certain 
person  that  the  wife  of  the  defendant  told  her  that  if  she 
would  come  into  court  and  swear  against  the  defendant  she 
would  give  her  a  new  dress.  In  this  connection  there  was 
another  question  asked  her, —  whether  the  wife  of  the  defend- 
ant had  not  advised  and  taught  her  to  walk  lame;  and  there 
was  a  question  asked  of  anotlier  witness  as  to  whether  the 
wife  of  the  defendant  had  not  instructed  the  prosecutrix  to  feign 
lameness.  Objection  to  all  such  questions  was  sustained.  Tlio 
prosecutrix  hatl  already  testitied  tiuat  the  wife  of  the  defend- 
ant once  told  her  to  swear  against  him,  and  then  again  told  her 
to  go  into  court  and  say  tliat  tlic  defendant  ])romised  her  slip- 
pers and  a  cloak  if  she  would  not  tell.  It  was  ap|)arent  that 
the  defendant  and  his  wife  were  not  on  good  terms,  and  that 
she  was  trying  to  get  rid  of  him,  and  it  was  clearly  pertinent 
to  show  that  she  was  influencing  the  prosecuting  witness  to 
testify  stron^ilv  against  him,  anil  if  she  was  so  influenced  it 
aff'ected  her  credibility.  Therefore  the  above  questions  were 
proper  and  pertinent,  and  the  court  should  have  allowed  them 
to  be  answered.  The  sustaining  of  the  objection  of  the  district 
attorney  to  them  was  clearly  error. 

7.  After  it  appeared  that  the  wife  of  the  defendant  had  ad- 
vised the  prosecution,  and  told  the  prosecutrix  to  swear  against 
the  defendant,  then  the  following  question  put  to  the  witness 
Shanly  was  clearly  proper,  as  sliowing  the  feeling  of  his  wife 
against  the  defendant,  as  her  motive  for  so  advising  the  prose- 
cutrix, viz. :  "  Stivte  whether  or  not  Mrs.  llardtke  ever  told  you 
unvthing  about  arresting  llardtke?"  The  court  erred  in  sus- 
taining  objection  to  it,  as  also  to  the  question  whether  she  told 
the  witness  that  she  was  going  to  get  rid  of  him. 

8.  After  the  court  had  agam  sustained  an  objection  to  the 
question  whether  the  wife  of  the  defendant  had  not  advised  and 


HARDTKE  v.  STATE. 


581 


instructed  the  prosecutrix  to  walk  lame,  and  how  to  do  it,  the 
witness  was  asked  when  ho  lirst  saw  her  walking  lame.  An 
objection  to  this  question  was  also  sustained.  This  was  also 
error.  The  prosecutrix  had  testilied  that  one  of  the  olTects  of 
the  assault  was  that  she  was  lame.  It  was  certainly  very  per- 
tinent to  inquire  whether  this  lameness  was  real  or  feigned,  as 
bearing  u\)on  the  nature  and  extent  of  the  injury. 

9.  Tlie  witness  answered  this  last  question,  notwithstanding 
the  ruling,  that  "it  was  after  Mrs.  Ilardtke  notilied  or  cau- 
tioned us;"  and  the  court,  on  the  motion  of  the  district  attor- 
ney, struck  out  the  answer,  and  it  was  excepted  to.  This  was 
error.  A  question  had  been  asked  whether  it  was  not  in  the 
presence  of  this  last  witness  that  the  wife  of  the  defendant  in- 
structed her  to  walk  lame,  and  the  court  sustained  an  objec- 
tion to  it;  and  this  explains  the  meaning  of  the  above 
question. 

10.  The  defendant's  counsel  offered  to  prove  by  the  witness 
Eegettella  that  he  saw  the  prosecutrix  passing  by  on  Sunday, 
the  -tlh  day  of  January  (a  few  days  after  the  pretended  in- 
jury), and  that  she  walked  as  usual,  and  did  not  appear  lame 
or  injured,  whicli  was  refused,  and  exception  taken.  This 
would  have  been  direcUy  contradictory  of  the  testimony  of  the 
prosecutrix,  and  would  have  tended  to  disprove  the  extent  of 
her  injury. 

11.  The  witness  Christman  testified,  among  other  things, 
that  the  wife  of  the  defentlant  requested  him  to  make  the  com- 
plaint in  the  case,  and  that  he  did  so,  and  the  court  struck  out 
all  of  his  evidence  on  its  own  motion,  and  the  defendant  ex- 
cepted. This  would  have  shown  tlio  interest  and  feeling  of  the 
defenilant's  wife,  and  her  motive  for  attempting  to  inlluence 
the  prosecutrix  to  testify  to  certain  facts  against  the  defend- 
ant, and  her  indilTerence  to  the  charge,  until  a  complaint  had 
been  nnuL>  by  another  at  the  request  of  the  defendant's  wife,— 
most  clearly  pertinent  and  material  to  the  case. 

12.  The  defendant's  counsel  offered  to  prove  by  the  witness 
Gay  tlje  general  reputation  and  general  character  of  the  de- 
fendant "  as  a  good,  peaceable,  law-abiding  citizen."  This  was 
objected  to  on  the  ground  that  no  attack  had  been  made  on  his 
character,  and  because  not  conlined  to  the  class  of  offenses  on 
trial,  and  the  objection  was  sustained,  and  the  defendant  ex- 


^?1  ^ 


582 


AMERICAN  CRIMINAL  REPORT* 


'•4. 


i, 


cepted.  This  was  clearly  error.  In  criminal  trials  it  is  al\va3'8 
proper  to  prove  tlio  previous  good  cliaructer  of  the  accused,  in 
order  to  sliow  that  it  was  unlikely  that  such  a  person  would 
have  per|)etrated  the  crime,  and  this  notwithstanding  his  goo;l 
character  is  presumed  until  it  is  impeached.  His  character  is 
attacked  by  the  charge  against  him.  Jjut  this  rule  is  element- 
ary. "NVIiart.  Crim.  Ev,,  §  oS.  In  this  case  the  evidence  that 
tiie  defendant  coinuiitted  the  crime  of  rape,  as  chargud,  was 
very  weak  and  unsatisfactory,  aUhougli  it  may  have  been  snf- 
llcient  to  show  that  he  committed  a  gross  assault  upon  the  per- 
son of  the  prosecutrix,  and  perhaps  with  such  intent;  and,  as 
we  have  seen,  there  had  been  no  proof  of  one  of  the  essential 
elements  of  the  crime,  except  by  very  remote  and  uncertain 
presumption.  In  such  a  case  good  ciiaracter  should  have 
weight  witii  tlie  jury.     ILxjan  o.  St(tt.t\  30  Wis.,  iiiiU. 

13.  Tiie  district  attorney  olfered  himself  as  a  witness,  and 
testified  that  on  the  occasion  of  the  defendant's  examination 
before  the  justice,  as  he  was  passing  from  one  room  to  an- 
other, tl)e  defendant  grabbed  hold  of  him,  and  stated  volun- 
tarily, "Look  here,  Adams,  I  want  you  to  stop  this," and  then 
stepped  in  front  of  him  and  said,  "Look  here,  Ailams,  I  don't 
want  you  to  go  any  further  with  this.  I  didn't  hurt  the  girl 
much.  I  will  give  you  -^S  or  ^>10.  The  girl  will  get  over  it 
again."  Laying  iisido  the  (piestion  of  the  olRcial  and  profes- 
sional propriety  of  the  prosecuting  otticer  ofl'ering  himself  as 
a  witness  against  the  prisoner,  while  he  is  himself  coadueUng 
the  prosecution,  which,  to  say  the  least,  is  very  questionable,  it 
will  be  observed  that  this  statement  of  the  defendant  falio  far 
short  of  an  admission  or  confession  that  ho  committed  the 
crime  of  rape.  At  is  an  adnjission  that  he  made  an  assault  upon 
and  injured  her,  but  nothing  further.  His  language  must  nob 
be  extended  beyond  its  ex[)ressed  meaning.  On  the  argument 
of  the  cause  to  the  jury  the  district  attorney  said,  "The  de- 
fendant confessed  this  crime  to  me."  To  this  remark  and 
others  the  defendant's  counsel  objected  and  excepted,  and  the 
record  does  not  show  that  the  court  g-ave  it  anv  attention 
whatever.  It  is  true  that  the  court  did  not  ajjit'/nativelij  rule 
on  this  objection  of  the  defendant's  counsel,  but  by  its  silence 
the  jury  might  have  well  understood  that  the  court  ap|)roved 
of  it,  or  at  least  thought  that  there  was  nothing  objectionable 


IIA.RDTKE  V.  STATE. 


583 


alwaj's 
Jsed,  in 
would 
is  goo;! 
letor  is 
einont- 
00  that 
(1,  was 
oil  Sllf- 
10  por- 
iiul,  as 
■iontial 
certain 
lI   have 


iio  girl 


in  the  remark.  It  was  so  clearly  not  a  correct  sixtement  of 
the  facts  proved  that  wo  think  it  was  the  duty  of  tue  court  to 
have  corroded  it  tliou  and  there.  It  was  very  matei  ial.  There 
had  boon  no  evidonoe  of  one  of  tiio  principal  ingredients  of  the 
crinio,  and  if  this  stutoniont  of  the  district  attorni.'V  was  ac- 
ce|)tod  by  the  court  and  jury  as  true,  it  supplied  all  defects  in 
the  tostiujony  and  was  a  full  confession  of  the  crime.  With 
the  errors  already  noticed  in  tliis  most  extraordinary  trial,  wo 
cannot  but  think  that  this  omission  of  the  court  to  correct  such 
a  material  and  im[)orlant  misstatement  of  the  evidence  was 
also  erroneous.  I  regret  that  it  has  appeared  necessary  to 
consider  so  many  po.nls  of  error  and  to  criticise  somewhat  the 
general  conduct  of  tlie  trial  of  this  case. 

/>'_//  the  Court. —  The  judgment  of  the  circuit  court  is  re- 
versed, and  the  cause  remanded  for  a  new  trial.  The  warden 
of  the  state  [)rison  will  surrender  the  plaintilf  in  error  to  the 
slieriir  of  Taylor  county,  who  will  hold  him  in  custody  until  he 
shall  bo  discharged  or  his  custody  changed  by  due  course  of 
law. 

Tavlok  and  Cassoday,  J  J.  AVe  concur  in  the  reversal  of 
the  judgment,  upon  the  ground  that  there  were  errors  in  the 
rulings  of  the  court  upon  the  trial  in  relation  to  tho  following 
matters  mentioned  in  the  o|)inion  liled:  (1)  Rejecting  tho  ques- 
tions to  Theresa  Seilz,  on  cross-examination,  as  to  whether  the 
conduct  of  tho  accused  had  been  improper  on  any  other  occa- 
sion. (2)  llejecting  questions  put  to  her  on  cross-examination 
tondin"-  to  show  that  she  had  been  influenced  to  testify  as  she 
did.  io)  llejecting  testimony  tending  to  sho  .v  that  after  the 
occurrence  in  tpiestion  she  had  feigned  lameness.  (4)  lleject- 
ing evidence  teiuling  to  [)rove  the  previous  good  character  of 
tho  accused.  (5)  Allowing  the  district  attorney  to  say,  in  sum- 
ming up  to  the  jury,  that  "  the  defendant  confessed  this  crime 
to  mo." 


Note.—  In  Gcnaro  Scrio  v.  State,  23  Tex.  App.,  633,  an  instruction  oc- 
currinji  in  t\w  course  of  a  charge,  tljat  "  penetration  only  is  necessary  to 
be  found  upon  a  trial  for  rape,"  was  held  misleading. 

In  the  case  of  The  State  v.  Johiimn,  91  Mo.,  439,  it  is  held  that  the  rule 
requiring  tho  court  to  instruct  as  to  the  law  relating  to  a  lesser  degree  of 
the  crime  charged,  where  the  evidence  is  not  conclusive  as  to  defendant's 


)S4 


AMERICAN  CRIMINAL  REPORT.^. 


,.^^ 


guilt  of  tlie  liiglier  dogroo  (State  v.  lirimatettcr,  Oj  Mo.,  M9),  doi-s  not  npply 
in  a  onso  of  rape,  of  which  criiiio  thoro  aro  no  (It'i^rocs, 

Tlie  indictintnit  is  Huttieieiit  to  charRu  rupo  if  it  ail(';;osi,  in  (ronomi  terms, 
that  tile  rape  was  accouiplislied  by  force  or  by  llneat.s  or  by  fraud,  or  by 
all  those  means  to^^ethcr,  and  it  is  not  essential  tiiat  it  should  allege  the 
cliaracter  of  the  force,  or  specif}-  the  tlireats  used.  Cuopcr  v.  State,  23 
Tex.  App.,  41». 

Under  section  1806  of  the  Criminal  Code  of  Indiana  it  is  sufllcient  to 
prove  penetration  either  by  direct  or  circumstantial  evidence;  and  evidence  o£ 
penetration  tu  the  slightest  degree  is  sulHcient  to  establish  the  crime  of  riij)e, 
if  the  other  elements  of  the  olfense  are  present.  Taijlor  v.  State,  111  Ind., 
279.     See.  also,  The  People  v.  Crowlei/,  102  N.  Y.,  2:il. 

At  coninion  law,  n  boy  under  the  age  of  fourteen  years  is  presumed  to 
be  incapable  of  committing  the  crime  of  rape.  }\'illiuinft  v.  The  State,  5 
Am.  Cr.  R.,  013. 

In  the  L-ase  of  liegina  v.  Mayers,  13  Cox,  Cr.  Cases,  p.  311,  the  court  hold 
that  if  a  man  has  or  attempts  to  have  connection  with  a  woman  while  she 
is  asleep,  it  is  no  defense  that  she  did  not  resist,  as  sjio  is  incapable  of  resist- 
ing. Theuian  can  therefore  be  found  guilty  of  u  riipu  or  an  attempt  to 
commit  rape.  And  while  it  would  ordin^jrily  appear  exceedingly  improb- 
able that  a  man  should  attempt  to  ravish  a  murriol  woman  in  bed  with  her 
husband,  such  a  crime  is  by  no  means  impossible,  and  it  is  for  the  Jury  to 
decide  the  (piestion  upon  the  evidence  adduced,     22  Tex.  App.,  2:59. 

Yet  in  the  case  of  Reg.  v.  Yuuiifj,  14  Cox,  Criin.  Cas.,  1 14,  the  prisoner  got 
into  bed  and  proceeded  to  have  connection  with  a  married  woman  as  she 
lay  there  asleep  in  the  bed  with  her  Imsband.  When  she  awoke,  she  at 
first  thought  he  was  her  husband,  but  on  hearing  him  speak,  and  seeing  her 
husband  at  her  side,  she  Hung  the  jjrisonur  off,  and  called  out  to  her  hus- 
band, when  the  prisoner  ran  away.  The  prisoner  was  held  guilty  of  the 
crime  of  rape. 

In  the  case  of  The  Queen  v.  Flatter!/,  2  Q.  H.  Div.,  410,  the  prisoner  pro- 
fessed to  give  medical  and  surgical  advice  for  money.  Tlio  prosecutrix,  a 
girl  nineteen  years  of  age,  consulted  him  with  respect  to  illness  from  which 
she  was  suffering.  Ho  advised  that  a  surgical  operation  should  bo  per- 
formed, and,  under  pretense  of  performing  it,  had  carnal  coimection  with 
the  prosecutrix.  She  submitted  to  what  was  done,  not  with  anj'  intention 
that  he  should  have  sexual  connection  with  her,  but  under  the  belief  that 
he  was  merely  treating  her  medically  and  performing  a  surgical  opera- 
tion, that  belief  being  wilfully  and  fraudulently  induced  by  the  prisoner. 
It  was  held  that  the  prisoner  was  guilty  of  rape. 

Consent  of  a  married  woman,  if  fraudulently  obtained  by  personation  of 
her  husband,  is  no  defense  to  an  indictment  for  rape.  See  The  Queen  v. 
Dee,  14  L.  R.,  Ir.,  468. 

Article  531  of  the  Texas  Penal  Code,  declaring  carnal  intercourse  with  a 
woman  obtained  by  means  of  fraud  to  bo  rape,  was  enacted  for  the  protec- 
tion of  married  women,  applies  to  them  only,  and  provides  that  the  fraud 
must  consist  in  the  use  of  some  stratagem  by  which  the  woman  is  induced 
to  believe  that  the  offender  is  her  husband.  A  charge,  therefore,  which 
announces,  in  elTect,  that  an  attempt  to  have  carnal  intercourse  with  a 


COATES  V.  STATE. 


6S5 


womnn  wlicn  sho  ia  nsleop  constitutes  fraud  witliin  tlio  meaning  of  thi.' 
htatutf,  Ia  orroncouH.     Kiiifj  r.  Sttite,  2i)  Ti-x.  Aiip.,  O.IO. 

Prior  nltriiiiiln  to  r(ii).\—T\\n  general  rulo  of  law  is  that,  upon  tlie 
trial  of  a  prisoniT  lor  ono  olfensL',  it  in  improper  to  i)rovo  that  ho  had  Ijoen 
guilty  of  other  olVcMscs;  as  w hero  a  prisoner  is  put  upon  trial  for  nunder 
larceny  or  Lur^hiry,  it  is  incompetent  to  prove  that  lio  has  heen  guilty 
of  other  mnrdt  th,  or  larcenies,  burglaries,  or  otiier  oriuies.  But  where  a 
prisoner  is  tried  for  a  particular  crime,  it  is  always  eomi)etent  to  show, 
upon  tiio  (picition  of  his  guilt,  that  ho  had  niado  an  aitempt  at  somo  prior 
time,  not  loo  di^ilant,  to  commit  tho  tamo  oU'enso  (The  I'cople  v.  O'Sulli- 
van,  104  N.  Y.,  ISl);  altliough  in  this  case  it  would  have  been  incompe- 
tent to  prove  tliat  tho  defendant  had  committed  or  attempted  to  commit  u 
mpe  upon  any  other  woman. 


CoATKS  V.  State. 

(50  Ark.,  330.) 

Rape :  Female  of  tender  years  —  Consent  —  Insanity  as  a  defense  —  Burden 

of  proof. 

1.  Insanity  —  DeI'T.xse  to  rape  — liuuuEX  op  proof.— Defendant  who 

relies  upon  insanity  as  a  defense,  in  a  trial  for  rape,  must  prove  that 
fact  l)y  a  i  reponderance  of  evidence. 

2.  Female  undimi  twelve  —  Consent.'  —  In  a  trial  for  rape,  committed  on 

a  girl  of  ten,  an  instruction  by  the  court  that  if  tho  girl,  at  the  time 
of  the  commission  of  tho  ollense,  was  under  twelve  years  of  age,  and 
on  account  of  hor  tender  years  was  incapable  of  understanding  the 
nature  of  tho  act,  her  consent  would  not  protect  tho  defendant,  was 
proper. 

Appeal  from  Circuit  Court,  Sebastian  County;  John  S.  Lit- 
tle, Judge. 

C.  E.  ^Yarncr^  for  appellant. 

D.  IF.  Joneii,  attorney-general,  for  appellee. 

CocKiur.r.,  C.  J.  Tlie  appellant  was  indicted  for  rape,  and 
was  convicted.  The  victim  was  his  daughter,  a  damsel  ten 
years  of  age.  His  defense  was  insanity.  The  proof  to  sus- 
tain it  was  meager.  Tlie  charge  of  the  court,  upon  this  sub- 
ject, was  in  accord  with  Camt  v.  Stale,  40  Ark.,  511,  where  it 
was  announced  that  a  defendant  who  relies  upon  insanity  as 


1  See  note. 


'■\.i 


586 


AMERICAN  CRIMINAL  REPORTS. 


ti:m 


an  excus(3  for  crime  must  prove  the  fact  by  a  preponderance 
of  evidenco.  AVe  are  asked  to  reverse  this  rule,  aiui  counsel 
are  encourageil  to  press  the  point  because  the  ilocisi.Mi  in  tliat 
case  was  by  a  divided  court.  We  are  aware  tliere  is  a  coiillict 
in  the  autiiorities  upon  the  question  deterinined  in  Ca.'ial,\s  Came. 
The  two  o))inions  delivered  in  the  case  show,  however,  that  it 
was  very  fully  .'md  carefully  considered,  and  it  is  not  claimed 
that  an}'  now  light  has  been  shed  upon  it  since  its  former  con- 
sideration by  the  court.  The  case  was  decided  on  the  concur- 
ring opinion  of  a  majority  of  the  court,  and  the  decision  is 
authoritative.  Tliero  has  been  a  chancre  in  the  court  since 
that  time,  and  that  fact  tnay  have  inlliienced  counsel  to  urge 
that  the  case  be  overruled;  ''but  it  would  be  mischievous  in 
the  highi'st  degree,''  as  Judge  Cooley  cx|>resses  it,  "to  permit 
the  re-opening  of  controversies  every  time  a  new  judge  takes 
his  place  in  the  court,  iheiLby  encouraging  speculation  as  to 
the  jn'obable  elfect  of  such  changes  uixni  principles  previously 
declared  and  enforced  in  decided  cases.  Nothing  is  more  im- 
portant than  that  the  law  should  be  L^ettletl,  and,  when  a  prin- 
ciple has  once  been  authoritatively  laid  down  by  the  court  of 
last  resoit,  it  should  be  reganled  as  finally  settled,"  as  well 
after  as  before  the  mend)ersliip  is  changed.  MrCutchcoti  v. 
IIo/Ncr,  43  Mich.,  483  (5  N.  W.  Hep.,  Gl»S).  Finding  the  ques- 
tion deliberately  settled  by  this  tribunal,  and  its  conclusion 
sustained  by  the  weight  of  authority,  we  adhere  to  the  settled 
doctrine  without  further  investigation.  There  is  no  room  to 
question  the  court's  direction  to  the  juiy  upon  the  charge  of 
rape,  when  considered  as  a  whole,  unless  in  that  j)ai't  of  it  here 
set  forth.  Aftei"  charging  fully  and  fairly  as  to  the  necessity 
of  the  proof  of  force,  in  the  commission  of  the  act,  to  wan-ant 
a  conviction,  the  charge  proceeds:  "If  you  linil  from  the  evi- 
dence that,  at  the  time  of  the  alleged  commission  of  the  of- 
fense, the  prosecutrix  was  under  twelve  yeai's  of  age,  and  that, 
on  account  of  her  tender  years,  she  was  incajfable  of  uniler- 
standing  the  nature  of  the  act,  her  consent  would  bo  no  pro- 
tection to  the  defendant."  Now  there  is  no  evidence  in  the 
record  from  wliich  it  can  fairly  be  inferi'ed  that  the  clnld  con- 
sented to  the  commission  of  the  crime.  8he  herself  expressly 
denied  it,  and  the  witnesses  who  were  attracted  by  her  cries 
and  groans,  and  who  interrupted  the  prisoner  in  the  act,  tes- 


M 


COATES  V.  STATE. 


587 


tify  that  they  overheard  him  threatening  to  whip  her  if  she 
(lid  not  hush,  and  tliatshc  was  weeping  continuiiliy.     She  was 
bruised  and  hicerated  at  the  time  from  former  attempts  by  the 
prisoner  to  commit  the  act,  and  she  consented  to  enter  the  pa- 
ternal roof  on  the  evening  of  the  olFonse,  only  upon  the  com- 
mand of  her  unnatural  father.     It  is  true  she  said  at  one  time 
in  her  examination  that  he  did  not  force  her,  but  force,  as  her 
untaught  mind  understood  it,  was  not  necessary  to  the  com- 
pletion of  the  offense.     There  is  a  wide  dilference  between 
submission  and  consent.      The  submission  of  a  child  in  the 
hands  of  a  strong  man  who  exercises  the  authority  of  a  parent 
to  subdue  her  cannot  be  taken  to  be  such  consent  as  will  jus- 
tify him  against  a  charge  of  rape.     State  v.  6/mw,  12  Iowa,  GG; 
Sh<irp  i\  Slate,  15  Tex.  Apji.,  171 ;  C liver  v.  State,  45  N.  J.  Law, 
4G.     Even  when  the  child  is  unresisting,  the  law  deems  the 
act  thus  done  as  accomplished  by  force.     Cases  nupra ;  Pleas- 
ant c.  S>,i/r,  V.)  Arlc,  IJOO;  Dawson  v.  State,  i>t)  ArU.,  110.     But, 
as  the   jury  might  have   drawn  a  ditferent  conclusion  from 
the  testimony,  however  unwarranted,  we  procijed  to  inquire 
whether  the  instruction  announces  the  law,  the  prisoner's  life 
being  involved.     If  a  female  be  an  adult,  but  incapable  of  con- 
sent to  carnal  intercourse  from  idiocy,  or  a  di-ug  administered 
to  her,  the  act  is  said  to  be  forcible  and  against  her  will.    The 
analogy  of  the  law  extends  the  rule  to  the  condition  of  an  in- 
fant whose  tender  years,  or  excei)tional  want  of  mental  and 
physical  develoi)ment  where  her  age  is  sullicient,  renders  her 
incai)able  of  understanding  the  nature  of  the  act.     Daimon  v. 
State,  21J  ArU.,  IIG;  1  Whart.  Crim.  Law,  g  558;  3  Greenl. 
Ev.,  §  211;  An.'ic/ilch  v.  State,  G  Tex.  App.,  521.     Under  the 
statute  of  IS  Elizabeth,  a  girl  under  ten  years  was  conclusively 
presumed  to  be  incapable  of  consent,  and  it  was  rape  to  have 
oarnal  knowledge  of  her  with  or  without  her  consent.     1  Hale, 
P.  C,  <i01;  Cnmioell  v.  People,  13  Mich.,  427;  Slate  v.  JJancij, 
83  N.  ('.,  008;  State  v.  Johndon,  70  X.  C,  2O0;  State  v.  Tilman, 
30  La.  Ann.,  1240.     See,  too.  Com.  v.  Sarjlaial,  4  Gray,  7;  I*eo- 
ple  V.  McDonahl,  9  Mich.,  150;  Fizdl  v.  State,  25  Wis.,  304; 
Lawrence  v.  Com.,  30  (J rat.,  845.     The  statute  of  Westminster 
1,  which  delined  the  same  crime  and  made  it  a  trespass  if  not 
prosecuted  within  forty  days,  embraced  all  females  "  within 
aj;e,"  a  term  which  all  the  authorit:es  agree  meant  twelve 


"n^i 


IV 


19 

mmM 

9 

I^Bi 

•".'.IfflHI 

H^mrW''' 

Kl 

^"''73DV 

^mDvX'S'j  1 

*''''-' itw^H 

w 

o''<i^t!$nH 

HIIK.:- 

588 


AMERICAN  CRIMINAL  REPORTS. 


years  {Pierson  v.  State,  39  Ark.,  219;  State  v.  Tlhnnn,  30  La. 
Ann.,  12-19;  Crossicell  v.  People,  supra),  and  made  it  an  oironsc 
to  have  carnal  intercourse  with  such  a  female,  th()UL!;h  consent- 
ing. As  the  statute  of  Elizabeth  did  not  include  females  be- 
tween ten  and  twelve,  it  was  held  that  it  did  not  repeal  that 
part  of  tlic  statute  of  Westminister  which  created  the  olfense 
as  to  them.  These  statutes  became  a  part  of  our  law  by  adop- 
tion. Mansf.  Dig.,  §  50(1;  4  VA.,  411;  1  Hale,  V.  C,  031.  It 
was  consequent!}'  a  common-law  offense  —  using  that  term  in 
its  common  acceptation  with  us,  as  embracing  the  JJritish 
statutes  in  force  when  wo  adopted  the  law  of  England  as  our 
own  —  to  have  carnal  knowledge  of  a  girl  under  twelve  years 
of  age,  a  felony  if  under  ten ;  a  misdemeanor,  as  generally  ac- 
cepted; but,  according  to  Sir  Matthew  Hale,  sicy^/'rt,  a  felony 
if  over  ten,  but  under  twelve.  2  Bish.  Crini.  Law,  §  1133; 
Ci'osswcll  V.  People,  fiupra.  The  presumption  in  every  such 
case  was  that  the  female,  by  reason  of  her  tender  years,  was 
incapable  of  consenting.  It  was  immatei-ial  whether  the 
charge  was  the  crime  <lenounced  by  the  statute  of  Elizabeth, 
or  the  olTenso  defined  by  the  statute  of  Westminster  J,  and 
not  covered  by  the  later  statutes;  the  presumption  was  con- 
clusive that  the  act  was  against  the  will  of  the  girl  within  age. 
Accordingly  in  Pierson  v.  State,  supra,  it  was  detei'mined  that 
the  legislature  of  this  state,  when  they  deiined  the  offense  of 
carnally  knowing  or  abusing  "a  female  child  under  the  age  of 
puberty,"  meant  a  female  child  under  the  age  of  twelve  years, 
because  that  was  the  age  of  consent  in  the  charge  of  rape. 
Reading  the  provisions  of  the  statute  as  to  rape  proper  and 
the  carnal  knowledge  of  children  together  as  //*  pari  materia, 
the  conclusion  is  that  he  who  carnally  knows  a  girl  under  the 
age  of  twelve  years,  with  or  without  her  consent,  is  guilty  of 
a  felony.  If  with  her  conserit,  when  she  is  capable  of  consent- 
ing, the  offense  is  punishable  by  confinement  in  the  peniten- 
tiary; if  against  her  will,  or  she  is  incapable  of  exercising  a 
will  on  the  subject,  it  is  rape  {Dawson  v.  State,  supra,'  Charles 
V.  State,  11  Ark.,  389);  and  the  punisinnent  is  death.  Mansf. 
Dig.,  §  15G8  et  se<p  The""  presumption  in  each  case  is  that  the 
girl  is  incapable  of  consenting.  In  ra|)e,  the  i)resum|)iion  may 
bo  rebutted  by  showing  that  the  female  in  fact  uiulerstood  the 
nature  of  the  act  {O'Meara  v.  Stale,  17  Ohio  St.,  515;  Charles 


I  !.»■'! 
1*1 


COATES  V.  STATE. 


589 


V.  State,  svpra\  and  the  offense  be  thus  reduced  to  the  lower 
punishment.     In  the  offense  of  less  punishment,  the  presump- 
tion is  conclusive.     In  this  way  full  scope  may  be  given  to 
each    provision   without  impairing  the   operation   of   either. 
Mansf.  Dig.,  §§  15(;S,  1571.     Independently  of  acts  of  parlia- 
ment, the  having  carnal  knowledge  of  a  child  of  tender  years, 
with  iier  consent,  was  not  an  offense  in  England,  according  to 
Cockburn,  C.  J.,  delivering  the  judgment  of  the  court  of  crim- 
inal appeals   in  liomna  v.  Johnson,  10  Cox,  Crim.  Cas.,  114. 
Our  statutory  delinition  of  rape  proper,  however,  is  declara- 
tory of  the  law  as  understood  after  the  acts  of  Westminster 
1,  and  18  Elizabeth.     1  East,  P.  C,  431:;  4  Bl.  Comm.,  210; 
1  Hale,  P.  C,  r>27;  Crossioell  v.  People,  supra;  State  v.  John- 
ston, supra;  State  v.  T'dman,  svpra.     That  our  statutes  were 
not  intended  to  abate  or  modify  the  offense  as  there  under- 
stood, further  than  was  done  by  the  provision  in  relation  to 
females  under  the  age  of  puberty  as  above  indicated,  is  shown 
by  the  juilgnient  in  Dairson  v.  State,  supra,  where  it  was  held, 
under  an  indictment  for  rape  in  ordinary  form,  not  to  be  error 
to  refuse  to  charge  the  jury  to  acquit  the  prisoner,  if  they 
found  the  dellowcred  girl  "offered  no  resistance  requiring 
force  to  overcome  it,  but  merely  withheld  her  consent."     The 
language  of  the  opinion,  the  authorities  cited  to  sustain  it,  and 
the  nature  of  the  instruction  rejected,  lead  to  the  conclusion 
that  it  was  the  intention  of  the  court  to  hold  that  it  was  rape 
to  have  carnal  intercourse  with  a  female  so  young  as  not  to 
be  capable  of  giving  consent.    The  girl  in  that  case  was  eleven 
years  of  age.     AVe  conclude,  therefore,  that  the  direction  to 
the  jury  complained  of  in  this  case  was  not  prejudicial  to  the 
defendant's  rights.     Conceding  that  the  jury  might  have  in- 
ferred that  the  girl  gave  an  outward  or  ajiparent  consent,  it 
was  for  them  to  determine  whether  she  was  capable  of  con- 
senting to  the  carnal  act.     Daicson  v.  State,  sujjra;  Joiner  v. 
State,  (i2  Ga.,  500;  O'Jfcara  v.  State,  supra;  Moore  v.  State, 
17  Ohio  St.,  522.     Peing  within  age,  the  presumption  was  she 
could  not,  and  there  was  no  testimony  to  rebut  it.     Let  the 
judgment  be  allirmed. 

Note.—  Definition  of—"  Carnally  knoiviug  and  abusing  female  child"— 
In  Mussiicliusetts  tlie  oiTenso  of  unlawfully  and  canially  knowing  and  abus- 
ing a  female  child  under  the  age  of  ten  years  ia,  and  for  more  than  two  hun- 


590 


AMERICAN  CRIMINAL  REPORTS. 


i?!>A»:i. 


p.: 


m"  ;f » 


!s  - ' 


dred  years  has  been,  known  and  designated  as  rape.    Com.  v.  Eoonnell,  143 
Mass.,  32. 

Assault  tfilh  inlcnt  to  rape  child  under  ten  years  of  age  —  Consent, — 
Where  an  indictiiieiit  alleges  that  the  defendant  cominittt'il  an  assault  upon 
a  female  child  under  the  age  of  ten  years,  with  intent  to  unlavvfuily  and  car- 
nally know  and  abuse  her,  it  is  no  defense  that  tiie  child  consented  to  the 
acts  of  the  defendant,  the  assault  not  being  the  graraiiieii  of  the  olTense, 
and  such  indictment  may  rest  upon  Public  Statutes,  clini  ter  203,  section  28, 
punishing  an  assault  with  intent  to  commit  rape.     Jhid. 

But  in  Slate  v.  Johnson,  100  N.  C,  494,  the  indictment  charged  that  de- 
fendant "  then  and  there  violently,  forcibly  and  against  her  will  feloni- 
ously did  ravish  and  tiirnally  know  "  the  prosecutrix.  It  was  held  that  the 
allegation  niut-t  be  sustained  bj'  proof.  The  trial  court  instructed  the  jury 
that '"if  the  prisoner  at  the  b.nr  had  unlawful  carnal  knowledge  of  and 
abused  Dilsej' Ann  Ilyman,  she  being  at  the  time  a  child  under  ten  years  of 
age,  the  [prisoner  is  guilty  whether  she  consented  or  not."  The  supreme 
court,  reversing  the  case  because  of  the  error  committed  in  giving  this  in- 
struction, says:  "As  abstract  proi)osition8  of  law,  the  chiirgc  is  not  open  to 
objection,  for  rape  may  be  committed  upon  a  female  of  any  age.  as  well 
when  she  is  under  or  oi  ten  years  of  age,  or  more,  the  ditrerence  being  that 
in  the  former  case  the  crime  is  not  mitigated  by  consent  of  the  youthful 
victim  of  the  outiage.  The  indictment,  however,  chiirg<s  tl-.at  the  connec- 
tion was  brought  about  by  force,  and  against  the  will  of  Dilsey;  and  while 
an  indictment,  or  a  count  in  it,  properly  framed,  to  which  the  charge  would 
apply,  would  warrant  its  being  given,  the  alkvation  of  the  use  of  force  in 
consummating  the  criminal  purpose  must  bo  followed  with  sustaining  proof, 
otherwise  the  jury  coidd  not  convict.  The  indictment  is  sutlicient  in  form 
to  warrant  the  verdict,  if  force  was  in  fact  resorted  to,  without  reference  to 
the  age  of  the  vii  tim  of  the  prisoner's  unrestrained  lust,  and  this  would  be 
directly  responsive  to  its  averments.  If,  however,  she  did  voluntarily  as- 
sent to  the  intercourse,  being  under  the  age  mentioned,  altlu)ugh  the  of- 
fense would  not  be  lessened  thereby,  and  the  jirisoner  could  be  convicted 
and  punishiHl  under  an  indictment  charging  the  statutory  offense  (Code, 
§  1101),  yet  such  is  not  the  charge  here  preferred  against  the  prisoner."  Cit- 
ing State  V.  Fanner,  4  Ired.,  224;  State  v.  Storkcy,  (i\  N.  (-.,  7.  " The  error, 
then,  consists  in  telling  the  jury  that  under  this  indictment  they  could  con- 
vict the  prisoner  if  the  aggrieved  girl  was  under  ten  yiiirs,  and  it  w.is  imma- 
terial whether  she  consented  or  not  to  the  prisoner's  embraces." 

Infants  under  fourteen  —  Knowledge  and  discretion. — In  an  action  for 
rape  or  carnal  knowledge  of  a  child  under  twelve,  against  a  boy  under  four- 
teen, the  failure  of  the  trial  court  to  direct  the  jury  to  consider  the  question 
whether  or  not  the  boy  had  at  the  time  discretion  and  mind  enough  to  know 
the  wrongful  character  of  the  act  is  ground  for  a  new  trial.  Ileilman  v. 
Com.,  84 Ky.,  457. 

Physical  capacity  —  Presumption. —  On  an  indictment  for  rape,  a  boy 
under  fourteen  is  jiresumed  to  be  physically  incapable  of  the  act,  but  evi- 
dence may  be  introduced  to  prove  his  capacity;  and  if  the  jury  are  con- 
vinced thereof,  then  the  presumption  of  incapacity  does  not  avail. 

The  consent  of  a  female  child  under  ten  years  is  no  defense,  although  tliere 


COATES  V.  STATE. 


591 


>mell,  143 

onsent. — 
!uiltii])on 

and  car- 
fd  to  the 

odt'iise, 
L'ction  28, 


may  be  actual  8ubmic<aion  of  a  cliild  without  constituting  legal  consent. 
See  Oliver  v.  The  State,  4  Am.  Cr.  R,,  533. 

A  criminal  itifoiination  umlor  sections  283  and  31  of  the  crimes  and  pun- 
isliment  act  (Kiui.),  charging  the  defendant  with  an  attenijit  carnally  and 
unlawfully  to  know  a  female  child  under  tlie  age  of  ten  years,  may  be  suf- 
ficient although  the  word  "r.npe"may  not  be  used  in  the  information. 
State  V.  Hart,  .5  Am.  Cr.  R.,  CC. 

Upon  the  trial  of  an  in<liotincnt  for  rape  it  is  proper  to  prove  by  the  com- 
plainant, after  she  has  testitied  to  the  connnission  of  the  offense  charged, 
a  prior  unsuccessful  attempt  uijon  iier,  by  the  defendant,  to  commit  the  same 
crime;  and  a  disclosuie  in  a  case  of  rape  has  no  value  wliatever,  unless  it 
is  the  natural  result  of  the  horror  and  sense  of  wrong  which  would  prompt 
any  virtuous  female  to  make  an  outcry  at  the  fust  suitable  opportunity.  See 
Evidence. 

In  the  c.so  of  Stoie  v.  Summers,  98  N.  C,  702,  it  is  held  that  on  an  in- 
dictment for  fornication  and  adultery,  where  the  offense  is  j^oved,  it  is  no 
bar  to  a  conviction  that  the  evidence  showed  defendant  to  liave  been  guilty 
of  rape. 

Complaint  of  prosecvtri.r.—  On  the  trial  of  a  prisoner  charged  with  rape, 
alleged  to  liave  bten  committed  on  a  certain  Saturday,  the  mother  of  the 
prosecuting  witness  was  permitted  to  testify  as  to  the  details  and  circum- 
stances of  the  alleged  otrense,  a-i  relateil  to  lier  by  her  daughter  on  the  fol- 
lowing Friday ;  sueli  statements  not  liaving  been  voUuitary  on  the  part  of 
the  daugliter,  but  tlie  result  of  questionings  by  the  mother.  Held  error. 
Parker  v.  State,  OT  Jld.,  329. 

In  Burnett  c.  State,  83  Ala.,  40,  it  is  said :  "  In  prosecutions  for  rape  it  is 
not  denied,  and  in  iact  may  be  said  to  be  universally  conceded,  that  the 
state  may,  on  the  direct  examination  of  tlie  prosecutrix,  prove  the  bare  fact 
that  she  made  complaint  of  the  injury,  and  when  and  to  whom,  and  she 
may  be  corroborated  by  the  peioon  to  wliom  she  com))]ained  as  to  the  same 
fact.  As  to  whether  the  details  or  particular  facts  of  tiie  complaint  can  be 
proved,  there  is  some  conflict  of  authority  among  the  decisions  outside  of 
this  state;  some  of  the  most  respectable  courts  holding  that  such  evidence 
is  admissible  to  show  the  nature  of  the  complaint  and  the  [)rohability  of 
its  truth,  lienstinc  r.  Slate,  2  Lea,  109;  H'ocd-s  v.  People,  5)  N.  Y.,  515; 
State  V.  Kinneii,  41  Conn.,  153.  The  rule  in  tiiis  stale,  however,  following 
what  is  believed  to  be  the  weight  of  authority  botli  in  England  and  Amer- 
ica, is  settled  the  other  way.  When  the  coiuplaint  does  not  constitute  a 
part  of  the  res  gestai,  but  is  received  only  in  corroboration  of  the  prose- 
cutrix's testimony,  the  general  rule  is  that  the  details  or  particulars  cannot 
be  introduced,  in  the  first  instance,  by  the  state.  This  would  exclude  any 
stateiuent  made  in  the  complaint  pointing  out  the  identity  of  the  person 
accused,  or  explaining  the  injuries  claimed  to  have  been  received  during 
the  alleged  perpetration  of  the  crime,  or  otherwise  giving  the  minute  cir- 
cumstances of  tiie  event.  GrlJJln  v.  State,  70  Ala.,  29,  and  cases  there 
cited;  Uornbcck  v.  State,  35  Ohio  St.,  277,  35  Amer.  Rep.,  608;  People  v. 
Mayes,  (iOCal.,  597,  C  Pac.  Rep..  691,  and  56  Amer.  Rep.,  126;  Oleson  v. 
State,  II  Neb.,  270,  9  N.  W.  Rep.,  38,  and  38  Amer.  Rep.,  366;  1  Whart., 
Crim.  Law  (9th  ed.),  §  560.    But  there  are  two  cases,  at  least,  where,  un- 


592 


AMERICAN  CRIMINAL  REPORTS. 


j'isi  ' 


8^,'*'' 
l**'^^i 


^' 


C-i 


'.». 


!»,*" 


r   v 


St   I 


^1  i 


der  the  autlioritics,  the  details  of  such  complaint  mny  bo  proved :  (1)  They 
may  be  elicited  on  cross-examination  by  the  defemlatit:  and,  whore  this  is 
done  only  in  part,  the  state  may  then  proceed  to  prove,  on  llie  reliuttinp; 
examination,  the  whole  com])laint.  (2)  Where  the  testimony  of  the  prose- 
cutrix is  sou,!^ht  to  be  impeached  by  attempting  to  discreilit  her  story,  it  is 
l)ern>issible,  by  waj'  of  corroboration,  for  the  state  to  [)r(ive  sudi  details, 
and,  iccording  to  many  of  the  authorities,  also  to  jjrove  thnt  she  told  the 
bl,"  r>  same  way  to  others,  confirmatory  of  her  first  statement.  Griffin 
V  .■■  If  rrt  Ala.,  a:);  SGreenl.  Ev.,  S  tJlS;  Pleasant  v.  Slate,  IT)  Ark..  0','4; 
«S,  \  ■    ■  Wolf,  8  Conn.,  SK);  State  v.  Lavton,  78  N.  C,  o(5t;   1  Wiiart. 

Crini.  Liiw  (9th  ed.),  i-  iiCid,  note  3,  p.  Hio.  Under  these  rules  it  was  per- 
r.'issible  for  tho  state  to  prove  by  the  witness  Alfred  Norman  the  full  par- 
ticular    'f  tht      V    plaint  made  to  him  by  the  prosecutrix." 

Dcclaratiutis  of  ,tro>->'iitrix — Delay.  —  On  the  trial  of  one  indicted  under 
section  681G,  Revi.-'Hl  Statutes,  for  carnally  knowing  and  abusing  a  female 
child  under  ten  years  of  age,  with  her  consent,  the  declarations  made  by 
the  injured  jierson,  in  reference  to  the  oflTense,  several  days  after  its  i)erpe- 
tration,  are  not  admissible  in  evidence  to  the  jury,  uidess  the  delay  in 
making  huch  declarations  is  first  explained  and  excused  by  proof  of  suffi- 
cient cause   herefor.    Dunn  v.  State,  45  Ohio  St.,  21!). 

S((ine.  —  Such  declarations  are  not  admissible  as  evidence  in  chief  to 
prove  the  commission  of  the  offense,  but  only  to  corroborate  the  testimony 
of  the  injured  person  given  in  court.     Ibid. 

Sa^ne. —  D.,  over  seventeen  years  of  age,  was  indicted  for  carnally  know- 
ing and  abusing  C,  a  female  child  under  ten  years  of  age,  witii  her  con- 
sent, on  tile  20th  day  of  December,  188C.  On  tiie  evening  of  that  day, 
and  on  the  next  succeeding  daj',  C.  made  complaint  to  lier  mother  of  the 
alleged  injury.  After  a  delay  until  the  !!Oth  day  of  Decend)er,  1880,  C, 
in  response  to  impiiries  by  her  mother,  uiadcj  a  statement  to  her  in  detail 
of  the  jiarticulars  of  the  offense.  The  statement  was  admitted  in  evidence 
on  the  trial  of  the  accused,  but  the  delay  in  making  it  to  the  mother 
was  not  explained  and  excused  by  proof  of  sufficient  cause  therefor.  Held 
that  it  was  error  to  permit  such  statement  to  be  given  in  evidence  to  the 
jury.     I  hid. 

Chnvartcr  of  p/'f>.sw(( //•/,».  — On  a  trial  for  rape  the  character  of  the 
prosecutrix  for  chastity  is  a  pro|)er  subject  of  in(|uiry,  as  bi>aring  on  the 
probability  of  her  consent  to  defendant's  act;  and  sui-li  a  character  may  be 
shown  by  evidence  of  her  general  reputation  in  that  respect,  or  by  proof  of 
her  previous  intercourse  with  defendant,  but  not  by  jiroof  of  particular 
acts  of  unchastity  with  third  persons.     meQiiirkr.  Stale,  81  Ala.,  -IILj. 

Inst  met  iinis  —  Consent  of  prosceittrix. —  In  such  case  it  is  error  to  refuse 
to  charge  tiiat,  if  the  jury  believe  that  the  conduct  of  the  prosecutrix  was 
such  towards  defendant,  at  the  time  of  the  alleged  rape,  as  to  creates  in  his 
mind  the  honest  and  reasonable  belief  that  she  bad  consented,  or  was  will- 
ing to  let  him  have  connection  with  her,  they  must  ucijuit.     n>id. 

Instr  net  ions  —  S((nit!i  of  ^'I'oseeutri.e. — Where  the  prosecutrix,  though 
weak-minded,  is  not  idiotic  or  non  compos,  it  is  error  to  refuse  to  charge 
that,  if  the  jury  have  a  reasonable  doubt  wlietlier  defendant  did  the  act 
without  her  con^'nt,  they  must  acquit,  though  they  may  believe  that  there 


(l)TIicy 


COMMONWEALTH  v.  LEONARD. 


SOS 


was  force  used,  and  that  the  prosecutrix  was  a  woman  of  weak  mind. 
Ibid. 

Instructions  — Proof  of  force,— In  such  case,  where  the  indictment 
charges  tiiat  the  defendant  "  forcibly  ravished  "  the  prosecutrix,  it  is  error 
to  refuse  to  charge  tlie  jury  that,  if  they  have  a  reasonable  doubt  whether 
the  act  was  done  with  force,  they  must  acquit,  though  the  prosecutrix  is  a 
woman  of  weak  mind.    Ibid. 


Commonwealth  v.  Leonaud. 


(140  Mass.,  473.) 

Receiving  stolen  property:  Evidence  — Seasonable  doubt  —  Cliaracter 

of  accused. 

1.  Indictment  —  Motion  to  quash.—  When  the  articles  in  each  count  of 

an  indictment  for  receiving  stolen  goods  are  the  articles  in  that  count 
alleged  to  have  been  stolen,  a  motion  to  quash  should  not  be  sustained. 

2.  Failure  to  keep  book  —  Evidence.—  The  failure  of  a  junk-dealer  to 

keep  a  book,  as  required  by  law,  wherein  all  articles  purchased  by  him 
are  to  be  entered,  may  be  shown  in  a  prosecution  against  him  for  re- 
ceiving stolen  property. 
8.  Knowledge  that  goods  were  stolen.—  If  the  accused  did  not  know 
the  facts  under  which  the  property  was  taken,  but  believed  from  the 
circumstances  that  the  property  had  either  been  embezzled  or  stoleft, 
and  it  had  been  actually  stolen,  he  may  be  convicted  of  receiving 
stolen  property. 

4,  Reasonable  doubt.—  If  the  jury  are  not  satisfied,  beyond  a  reasonable 

doubt,  that  defendant  knew  the  property  was  stolen,  he  will  be  en- 
titled to  an  acquittal. 

5.  Character  op  accused. —  Good  character,  like  all  other  facts  in  the 

case,  should  be  considered  by  the  jury,  and  if  therefrom  a  reasonable 
doubt  is  generated  in  the  mind  of  the  jury  as  to  the  guilt  of  the  ac- 
cused it  is  their  duty  to  acquit.' 

This  is  an  indictment  containing:  three  counts  for  receiving 
stolen  property  belonging  to  the  Boston  &  Lowell  Eailroad 
Corporation.  Before  the  jury  was  impaneled  the  defendant 
filed  a  motion  to  quash,  which  was  overruled. 

The  testimony  for  the  government  was  that  certain  old  ma- 
terial, iron  and  metals,  such  as  mentioned  in  the  indictment, 
having  been  stolen  from  the  Boston  &  Lowell  Railroad  Corpo- 
ration, were  afterwards,  on  the  20th  day  of  August,  1883,  found 


Vol.  VII -J 


1  See  note. 


*,r< 


594 


AMERICAN  CRIMINAL  REPORTS. 


>!;;•. 


f  5.') 


in  the  shop  of  the  defendant  in  Cambridge,  wlio  was  a  licensed 
junk-dealei'.  James  McCarty,  a  witness  for  the  government, 
testified  tliat  he  was  in  the  employ  of  the  Boston  tfc  Lowell 
Eailroad  Corporation  a  number  of  years;  that  for  a  long  period 
before  the  said  29lh  day  of  August,  188;),  while  in  such  employ, 
he  had  been  in  the  habit  of  appropriating  iron  and  other  ma- 
tei'ials  of  the  corporation,  which  were  taken  from  old  cars  in 
the  repair-shop,  and  selling  the  same  to  the  defendant;  and 
that  the  defendant  induced  him  to  procure  tiiem  for  him.  This 
witness  was  indicted  in  said  county  for  the  larceny  of  said 
property,  forfeited  his  recognizance,  and  his  sureties  had  been 
sued,  which  suit  is  now  pending.  After  default  and  suit  he 
has  come  into  court  and  pleaded  guilty  to  the  indictment,  but 
has  never  been  sentenced.  Two  police  ollicers,  .Murray  and 
Moore,  testified  for  the  government  that  they  went  to  defend- 
ant's junk-shop  on  said  August  21),  and  learned  from  him  that 
he  had  no  book,  as  required  to  be  kept  by  junk-dealers;  that 
with  two  other  persons,  employees  of  said  corporation,  they 
found  there  a  considerable  quantity  of  old  iron,  among  which 
was  the  property  described  in  the  thir.l  count  of  the  indict- 
ment, and  that  the  property  so  described  was  taken  awa}^  and 
restored  to  said  corporation.  A  small  portion  of  the  property 
fhus  t;iken  was  positively  identified  as  behjnuing  to  said  cor- 
poration, and  the  remainder  resembled  proi^erty  which  be- 
longed to  it.  The  two  police  ollicers  als(j  testified  that  the 
defendant,  when  asked  where  he  obtainetl  the  ])roperty  taken 
away,  replied  that  he  bought  it  of  a  man  on  the  street  whom 
he  did  not  know;  that  he  lived  on  Third  street,  and  he  did  not 
know  his  name;  but  he  finally  said,  on  being  pressed,  that  his 
name  was  McCarty,  and  that  he  worked  on  the  Boston  «fe 
Lowell  Railroad.  Against  the  objection  of  the  defendant, 
Officer  Murray  was  permitted  to  testify  that. as  inspector  of 
junk-shops,  which  office  he  then  held  in  ^lay,  ISbo,  he  went  to 
see  defendant  at  his  shop  in  regard  to  whether  he  should  re- 
ceive a  new  license,  and  then  asked  him  whctlier  he  kept  a 
book  such  as  the  law^  requires  of  junk-dealers,  and  he  said 
that  he  had  not;  that  he  (Murray)  told  him  he  must  do  so, 
and  if  he  did  not  he  should  report  against  his  receiving  a 
new  license;  and  that  the  defendant  then  prociised  to  keep  a 
book ;  and  Murray  reported  in  his  favor,  and  he  had  a  new 


COMMONWEALTH  v.  LEONARD. 


595 


-  licensed 
crnmcnt, 
fc  Lowell 
1^  period 
I  employ, 
)tlier  ma- 
d  cars  in 
ant;  and 
im.  This 
,'  of  said 
had  been 
I  suit  he 
nent,  but 
i-ray  and 
)  defend- 
him  til  at 
L'rs;  that 
ion, they 
ig  which 
le  indict- 
Lwuy  and 
property 
said  cor- 
•hich  be- 
tliat  the 
•ty  taken 
let  whom 
e  did  not 
,  that  his 
ioston  «fc 
b>l'ondant, 
lector  of 
J  went  to 
ihould  re- 
e  kept  a 
I  he  said 
ist  do  so, 
jeiving  a 
;o  keep  a 
d  a  now 


license  granted  him.    The  defendant  testified  that  ho  bought 
the  property  of  McCarty,  but  that  ho  honestly  did  so;  that 
he  had  known  McCarty  by  sight  for  a  long  while  before  ho 
bought  anything  of  him;  that  ho  saw  him  frequently  pass  his 
premises  on  liis  way  to  work,  but  did  not  know  where  he  was 
employed ;  that  he  knew  ho  lived  near  by  on  Third  street;  that 
McCarty  took  him  to  his  liousc  and  showed  him  there  the  first 
lot  sold  him,  telling  him,  in  explanation,  that  he  bought  it 
attached  to  wood  as  old  material,  pointing  out  to  him  the 
wood,  which  was  broken  and  piled  up  as  lire-wood,  and  say- 
ing that  ho  had  opporiunities  of  purchasing  such  old  material. 
He  further  testified  that  there  was  nothing  ho  purchased  of 
McCarty  but  what  junk-men  usually  deal  in  and  have,  and  the 
property  in  itself  would  excite  no  suspicion  if  presented  for 
sale  to  a  dealer  in  junk;  that  he  was  sixty-two  years  old;  had 
lived  in  Cambridge  twenty-four  years,  and  was  engaged  in  the 
junk  business  all  that  time  there,  receiving  a  license  each  year; 
that  he  had  a  family  and  was  a  real  estate  taxpayer;  that  he 
did  not  say  to  the  ollicers  that  he  did  not  know  of  whom  he 
bought  the  i)roi)ertv,  and  that  on  the  contrary  he  told  them 
at  once,  without  hesitation,  that  he  bought  it  of  McCarty; 
that  he  gave  the  oitlcers  information  whore  McCarty  lived ; 
and  that  when  McCarty  was  afterwards  arrested  by  these  of- 
ficers he  identified  him  at  the  police  station  as  the  man  of 
whom  he  bought.     Two  witnesses,  large  wholesale  dealers  in 
junk  in  the  city  of  Boston,  testified  for  the  defendant  that 
the  prices  paid  to  JSIcCarty  were  fair  market  prices  for  the 
material  when  purchased,  and  more  than  such  was  now  worth; 
that  such   property  was  commonly  found  in  junk-shops  and 
dealt  in   by  junk-dealers;  and  that  while  the  ofioring  of  a 
single  spring  for  sale  by  a  stranger  might  be  suspicious,  the 
offering  of  a  quantity  of  this  material  by  one  known  to  the 
dealer  would  excite  no  suspicion  that  it  had  been  dishonestly 
obtained.     None  of  the  property  was  produced  in  court  by 
the  government,  but  certain  coil-springs  and  an  elliptic  spring 
were  shown  in  court  by  the  defendant,  which  were  junk,  and 
had  come  from  the  junk-shop  of  one  of  the  wholesale  doaloKs 
mentioned,  md  the  witnesses  for  the  government  in  the  em- 
ploy of  said  railroad  admitted  that  these  were  good  samples 
of  and  in  as  good  condition  as  the  property  bought  of  McCarty. 


I«ii 


M 


m 


AMERICAN  CRIMINAL  REPORTS. 


I.'. 


m 


«3i^i 


The  defendant  introduced  the  testimony  of  many  respectable 
witnesses,  nil  of  whom  were  old  residents  of  Cambridge,  and 
had  lived  and  done  business  very  near  to  defendant,  some  upon 
the  same  street  with  him,  and  had  known  and  seen  him,  and 
those  who  knew  him,  almost  daily  for  many  years.  Among 
these  were  the  chief  of  the  state  police,  aldermen  and  ex-alder- 
nien,  members  of  the  council  and  of  the  legislature.  All  of 
these  witnesses  testified  to  the  uniform  good  character  of  the 
defendant. 

The  defendant  asked  the  judge  to  instruct  the  jury  as  fol- 
lows: "1.  If  the  jury  are  not  satisfied  beyond  a  reasonable 
doubt  that  the  accused  know  that  the  goods  were  stolen,  he  is 
entitled  to  an  acquittal.  2.  To  justify  a  conviction  it  is  not 
sufHcicnt  to  show  that  the  accused  had  a  general  knowledgo 
of  the  circumstances  under  which  the  goods  were  stolen,  un- 
less the  jury  are  also  satisfied  that  he  knew  that  the  circum- 
stances were  such  as  constituted  larcenv.  3.  Good  character, 
like  all  other  facts  in  the  case,  should  be  considered  by  tie 
jury,  and  if  therefrom  a  reasonable  doubt  is  generated  in  the 
mind  of  the  jury  as  to  the  guilt  of  the  accused,  it  is  their  duty 
to  acquit." 

The  judge  refused  to  give  these  instructions,  and  upon  the 
matters  embraced  therein  instructed  the  jury  as  follows: 
"  When  a  man  is  put  on  trial  charged  with  a  criminal  act,  ho 
has  a  right  to  put  in  evidence  the  reputation  which  he  has 
from  those  who  know  him,  his  character,  in  other  words,  by 
way  of  rebuttal  of  the  inference  that  he  might  be  likely  to 
commit  the  act  of  which  he  is  accused;  if  a  person  is  charged 
with  any  act  which  implies  dishonesty,  he  has  a  right  to  put 
in  his  reputation  of  being  an  honest  man,  in  order  to  furnish 
evidence  that  the  character  of  the  man  accused  is  such  that 
one  would  not  be  likely  to  expect  crime  to  be  committed  by 
him.  Character  may  properly  be  thrown  into  the  scale  to  in- 
crease any  reasonable  doubt  that  the  jury  might  have  on  the 
case  in  question;  of  course,  character  is  no  excuse;  a  good 
name  is  no  answer  against  decisive  evidence;  it  is  in  a  case 
where  the  evidence  is  doubtful,  and  the  mind  of  the  jury  is  in 
doubt,  that  the  evidence  of  good  character  is  thrown  into  the 
scale  in  behalf  of  the  man ;  of  course,  if  a  man  should  come 
before  a  jury,  a  credible  witness,  and  say  he  saw  the  accused 


spcctnble 
idge,  and 
)me  upon 
him,  and 
Among 
ex-alder- 
.  All  of 
er  of  the 


•y  as  fol- 
asonablo 
len,  he  is 
it  is  not 
lowledgo 
tolen,  un- 
circum- 
haracter, 
;d  by  tie 
3d  in  the 
leir  duty 

upon  the 
follows : 
al  act,  he 
1  he  has 
vords,  by 
likely  to 
s  charged 
ht  to  put 
>  furnish 
such  that 
litted  by 
ale  to  in- 
e  on  the 
;  a  good 
n.  a  case 
jury  is  in 
1  into  the 
tld  come 
I  accused 


COMMONWEALTH  v.  LEONARD. 


597 


party  commit  a  crime,  it  would  bo  no  answer  for  that  party 
to  say:  '  My  character  has  always  been  good.'  It  is  impor- 
tant, where  the  evidence  to  convict  is  doubtful,  that  it  should 
be  thrown  into  the  scale  in  his  favor;  but  where  the  evidence 
is  strong  and  his  guilt  is  impressed  on  the  minds  of  the  jury, 
of  course  it  is  not  of  the  slightest  consequence.  He  must  know 
that  the  goods  were  stolen,  but  he  does  not  need  to  know  the 
hour  nor  day  they  wore  stolen ;  he  must  undoubtedly  have  no- 
tice wliich  would  put  him  on  his  guard,  as  knowledge  that  the 
goods  were  acquired  and  turned  over  to  him  by  a  person  not 
taking  them  by  mistake,  not  by  right,  but  taking  them  as 
thieves  take  them;  that  is,  lor  the  purpose  of  defrauding  the 
railroad  and  cheating  them  out  of  their  property." 

Defendant's  counsel  here  suggested  "  by  larceny,"  and  the 
judge  gave  this  further  instruction:  "By  the  taking  and  car- 
rying away  of  property,  it  is  the  fraudulent  taking  away  of 
the  property  of  another  for  the  purpose  of  converting  it  to  the 
taker's  use  to  deprive  the  owner  of  it.  These  goods  must 
have  been  taken  that  way,  and  were  stolen  goods;  they  must 
have  been  taken  by  McCarty  as  thieves  take  them,  not  by  mis- 
take or  accident,  or  by  taking  from  those  who  had  no  right 
to  give,  but  taking  when  he  knew  that  he  had  no  right  to  take 
them." 

The  jury  returned  a  verdict  of  guilty  on  the  third  count,  and 
of  not  guilty  on  the  other  counts;  and  the  defendant  alleged 
exceptions. 

C.  J.  Jfflnttrj  and  G.  A.  Perkins,  for  the  defendant. 
K  J.  Shennan,  attorney-general,  and  II.  N.  Shepart,  assist- 
ant attorney -general,  for  the  commonwealth. 

FiKLD,  J.  The  motion  to  quash  was  rightly  overruled.  The 
articles  in  each  count  alleged  to  have  been  feloniously  received 
are  the  articles  in  that  count  alleged  to  have  been  stolen.  As 
testimony  was  introduced  that  the  defendant  did  not  keep  a 
junk-dealer's  book,  the  testimony  of  Murray  was  competent 
for  the  purpose  of  showing  that  the  defendant  knew  that  the 
statute  of  the  commonwealth,  and  the  ordinances  of  the  city 
of  Cambridge,  required  him  to  keep  such  a  book.  See  Pub. 
Sts.,  ch.  102,  §  21).    If  the  defendant  intentionally  neglected 


508 


AMEKICAN  CRIMINAL  KEPOUTS. 


if  I 


441. 


to  keep  a  book  which  was  required  b}'  hiw  luaiiifostly  for  tho 
purpose  of  tracing  all  articles  purchased  by  him  as  a  junk- 
dealer,  the  fact  was  competent  to  be  considered  i)y  the  jury. 

The  olfcnse  of  receiving  stolen  property,  knowing  it  to  have 
been  stolen,  must  be  considered  as  distinct  from  tlie  olfenso  of 
receiving  embezzled  property,  knowing  it  to  have  been  cmboz- 
zled  (Pub.  Sts.,  ch.  203,  g§  48,  51),  although  embezzlement  under 
our  statutes  has  been  held  to  bo  a  species  of  larceny.  Com.  v. 
Pratt,  11V2  .Mass.,  210.  Tho  punishments  of  the  two  olfenses 
may  be  dilTerent,  as  tho  olfense  of  receiving  embezzled  goods 
may  bo  punished  by  a  lino  without  imprisonment.  If  th 
projierty  had  actimlly  been  stolen,  a  belief  on  the  part  of 
defendant  that  it  ha<l  been  stolen  is  tantamount  to  knowledge , 
if  the  defendnnt  knew  all  the  facts,  and  the  facts  constituted 
larceny  as  distinguished  from  embezzlement,  it  would  be  no 
defense  that  the  defendant  thought  that  the  facts  constituted 
embezzlement.  If  the  defendant  did  not  know  the  facts,  but 
believed  from  the  circumstances  that  tho  property  had  been 
either  embezzled  or  stolen,  and  it  had  been  actually  stolen, 
it  was  competent  for  the  jury  to  find  the  defendnnt  guilty  of 
tho  offense  charged.  The  second  request  for  insti'uctions  was 
therefore  rightly  refused. 

The  first  request  for  instructions  states  the  law  with  substan- 
tial correctness.  It  is  contended  that  the  instructions  given 
on  this  point,  rightly  construed,  are  the  same  in  effect.  Wo 
find  it  unnccessar}'  to  decide  whether  the  case  called  for  a 
more  careful  definition  of  larceny  as  distinguished  from  em- 
bezzlement or  from  wilful  trespass. 

The  third  request  was,  we  think,  a  correct  statement  of  tho 
law  as  it  must  now  be  held  in  this  commonwealth.  The  case 
was  peculiarly  one  where  evidence  of  the  defendant's  general 
reputation  for  honesty  in  his  business  deserved  consideration. 
Such  evidence  is  always  competent  in  the  trial  of  offenses  of 
this  character.  It  is  not  the  law,  we  think,  that  evidence  of 
character  can  only  be  considered  b}'  the  jury  where  the  other 
evidence  is  doubtful, and  that  "it  is  not  of  the  slightest  conse- 
quence" where  the  other  "evidence  is  strong,"  and  the  guilt 
of  the  defendant  "  is  impressed  on  the  minds  of  the  jury."  In 
Com.  V.  Uanbj,  2  Mass.,  303,  317,  it  was  said  that  "  in  doubtful 
cases  a  good  general  character  clearly  established  ought  to 


COMMON  WEALTH  v.  LEONARD 


099 


liavo  weight  with  a  jnn-,  but  it  ought  not  to  prevail  against 
the  positive  tesliuioiiy  of  crodililo  witnesses;"  and  in  Com.  v. 
Wehd<i\  :>  Ciish.,  li'.i,"},  a  distinclion  was  taken  Ijclwoen  crimes 
"of  great  and  atrocious  oriiiiinahty  "  and  "smaller  olfenses," 
and  it  was  sai<l  tliat  "against  facts  strongly  proved  good  char- 
acter cannot  avad."  and  tiiat  in  tho  smaller  offenses,  such  as 
"pilfering  or  stealing,"  when  the  evidence  is  doubtful,  .  .  . 
proof  of  chiirucU'r  may  bo  given  with  good  effect. 

Both  tliese  dc'cisions  were  before  the  General  Statutes,  chapter 
115,  section  5  (Pub.  Sis.,  ch.  153,  §  5),  wliich  provided  that  "the 
courts  shall  not  charge  juries  with  respect  to  matters  of  fact, 
but  may  state  tlie  testimony  and  the  law."  The  distinction 
taken  in  Com.  v.  ]\'c/j.s(cr,  if  it  bo  regarded  as  matter  of  law, 
has  been  expressly  disapproved  of  in  Canfcml  v.  People.,  16 
jS'.  Y.,  501;  liurniijloa  v.  ISlate,  19  Ohio  St.,  iidl,  and  People 
V.  Garhutf,  17  .Micii.,  9.  Tlie  old  rule  that  evidence  of  the 
good  character  of  tlie  defendant  is  not  to  be  considered  by 
the  jury  unless  the  other  evidence  leaves  their  minds  in  doubt 
has  been  much  criticiseil  and  the  weight  of  authority  is  now 
against  it.  1  J5isli.  C;rim.  Troc.  (3d  ed.),  ^'§  1115,  111(3;  3 
IlusK  Cr.  (5th  ed.),  391;  3  Cireenl.  Ev.,  §  25;  AVhart.  Crim.  Ev. 
(9th  ed.),  g  CO;  SUumH  v.  State,  22  Ohio  St.,  477;  People  v, 
Ashe,  •llCal..  2SS;  State  v.  llennj,  5  Jones  (X.  C),  Go;  Pevisenv. 
People.,  13  N.  Y.,  0;  State  c.  Ltndleij,  51  Iowa,  ?A>j',  lleinev.  Com., 
91  Ta.  St.,  145;  State  v.  JJaleu,  53  Vt.,  442;  Coleman,  v.  State, 
59  Miss.,  484;  Ca/iccmi  v.  People,  ithl  svpra,  Ilari'inyton  v. 
State,  nbl  mipra;  People  v.  Garhutt,  %ihi  siipva. 

If  evidence  of  reputation  is  admissible  at  all,  its  weight 
should  be  left  to  be  determined  by  the  jury  in  connection  with 
all  the  other  evidence  in  the  case.  The  circumstances  may  be 
such  that  an  established  reputation  for  good  character,  if  it  is 
relevant  to  the  issue,  would  alone  create  a  reasonable  doubt  in 
the  minds  of  the  jury,  although  without  it  the  other  evidence 
wonld  be  convincing.  To  instruct  a  jury  that  they  are  first  to 
consider  the  other  evidence  in  the  case,  and  that  if  they  are 
thereby  convinced  beyond  a  reasonable  doubt  of  the  guilt  of 
the  defendant  they  are  to  disregard  the  evidence  of  good 
character,  and  that  they  are  only  to  consider  this  evidence 
when  their  minds  are  left  in  doubt  by  the  other  evidence,  and 
when  perhaps  the  defendant  does  not  need  the  evidence  of 


m  % 


It' 


•1' 


600> 


AMERICAN  CRIMINAL  REPORTS. 


character  for  his  acquittal,  is  a  practice  that  finds  even  less 
support  in  reason  than  in  authority.  The  old  practice  of 
charging  juries  that  evidence  Of  character  was  of  little  or  no 
weight,  except  in  doubtful  cases,  undoubtedly  grew  up  when 
judges  were  accustomed  to  express  their  opinions  to  jurors 
upon  matters  of  fact,  and  the  weight  to  be  given  to  evidence, 
and  was  perhaps  sufficiently  just  in  particular  cases;  but  we 
think  it  ought  not  to  have  been  made  a  rule  of  universal  ap- 
plication,—  that  is,  a  rule  of  law;  and  since  the  passage  of  the 
General  Statutes,  chapter  115,  section  5,  it  is  open  to  the  objec- 
tion that  it  is  charging  juries  upon  the  weight  to  be  given  to  evi- 
dence, when  the  lanv,  in  our  opinion,  does  not  define  the  degree 
of  weight  to  be  attached  to  it.    Exceptions  sustained. 

Note. —  Good  character  of  accused. —  In  criminal  prosecutions,  evidence 
of  the  good  character  of  the  defendant  is  to  be  regarded  as  a  substantive 
fact,  like  any  other  fact  tending  to  establish  the  defendant's  innocence,  and 
ought  to  be  so  regarded  both  by  court  and  jury.  Hanuey  v.  Com.,  IIG  Pa. 
St.,  322. 


1^ 


People  v.  Rilev. 

(75  Cal.,  «8.) 
Robbery  :  Indictment  —  Absent  from  state  —  Evidence. 

1.  Indictment  —  Desciuption  of  offense  —  Against  the  will,  etc.— 

Under  Penal  Code  of  California,  section  211,  defining  robbery  to  be  the 
felonious  talking  of  personal  property  against  the  icill  of  the  {lerson 
robbed,  an  indictment  charging  the  defendant  with  talcing,  "  by  means 
of  fraud  and  force,  .  .  .  $160  lawful  money  of  the  United  States, 
said  money  being  the  property  of  one  M.,"  is  suJllcient. 

2.  Stenoouapher  not  swobn  —  Cektificate.—  A  stenographer  appointed 

in  a  criminal  action,  under  the  authority  of  Penal  Code  of  California, 
section  809,  by  the  magistrate  before  whom  the  examination  is  had, 
to  take  depositions,  need  not  be  sworn  to  faitiifuiiy  perform  his  duty, 
nor  need  the  fact  that  he  was  sworn  appear  in  the  depositions,  and  a 
certiiicate  that  the  "  foregoing  is  a  correct  transcrii)t  of  tiie  examina- 
tion in  the  above-entitled  case"  is  suilicient  upon  which  to  admit  a 
deposition  in  evidence. 

3.  When  may  be  read  —  Witness  absent  from  state.— Penal  Code  of 

California,  section  1.345,  provides  that  a  deposition  may  bo  read  in  evi- 
dence on  the  trial  of  an  indictment  upon  its  appearing  that  tlie  wit- 
ness is  unable  to  attend  by  reason  of  death,  insanity,  sickness  or 
inflrmity  or  continued  absence  from  the  state,  and  the  court,  upon 


PEOPLE  V.  RILEY. 


601 


proper  showing  being  made,  is  justified  in  finding  that  the  witness 
could  not,  with  due  diligence,  be  found  within  the  state. 

4.  Ground  op  objection  to  questions.— Penal  Code  of  Cahfornia,  sec- 
tion 869,  subdivision  3,  provides  that  in  taking  depositions  to  be  used 
in  a  criminal  action,  if  a  question  put  be  objected  to  and  overruled, 
that  fact,  with  the  ground  on  which  the  question  was  overruled,  must 
be  stated.  Held,  that  the  ground  of  objection  is  sufficiently  shown 
if  it  appear  that  the  question  was  overruled  as  being  "  immaterial  and 
irrelevant." 

6.  Evidence  of  identity  op  person.—  On  the  trial  of  an  indictment  a 
deposition  was  read  in  evidence  in  which  the  defendant  was  referred 
to  by  name,  without  further  description.  The  court  charged  the  jury 
that  "  identity  of  person  is  presumed  from  identity  of  name."  Held 
that,  as  no  evidence  was  introduced  to  overcome  the  presumption,  the 
giving  of  the  instruction  was  error  without  prejudice. 

Appeal  fropi  a  judgment  of  the  Superior  Court,  San  Bernar- 
dino County,  and  from  an  order  denying  a  ntw  trial. 

Jaines  Riley  was  indicted  for  robbery.  On  the  trial  the 
testimony  of  the  prosecuting  witness,  which,  at  the  examina- 
tion before  the  magistrate,  had  been  reduced  to  writing,  was 
introduced  in  evidence.  The  defendant  was  therein  referred 
to  by  name,  without  further  description.  The  court  instructed 
the  jury  that  "  identity  of  person  is  presumed  from  identity  of 
name,"  to  which  instruction  defendant  excepted.  The  other 
facts  sufficiently  appear  from  the  opinion.  There  was  a  ver- 
dict of  guilty,  and  defendant  appeals. 

Bakei'  db  Blair  and  Ziie  G.  Peck^  for  appellant. 
Gto.  A.  Jolmson,  attorney-general,  for  respondent. 

McKiNSTKY,  J.  The  defendant  was  convicted  of  robbery  in 
San  Bernardino  county,  and  has  appealed  from  the  judgment 
and  from  an  order  denying  a  new  trial.  It  is  contended  the 
motion  in  arrest  of  judgment  should  have  been  granted  be- 
cause the  information  does  not  aver  that  the  $1G0,  lawful 
money  of  the  United  States,  "said  money  being  then  and 
there  the  property  of  one  Christian  Meyer,"  was  "personal" 
property.  The  point  is  not  well  taken.  The  information 
charges  that  the  defendant,  on  a  day  nai.ied,  etc.,  did  "  unlaw- 
fully, wilfully  and  feloniously,  and  by  means  of  fraud  and 
force,  take  from  the  person,  possession,"  etc.  It  is  claimed 
the  judgment  should  have  been  arrested  because  the  in  forma- 


602 


AMERICAN  CRIMINAL  REPORTS. 


M 


■^^. 


H"'  *,   M 


tion  is  fatally  defective,  in  that  it  omits  the  statutory  words, 
"and  against  his  will."  Penal  Code,  g  211.  But  the  informa- 
tion is  sufficient.  Penal  Code,  §  900.  A  robbery  "  accomplished 
by  means  of  force  and  fear "  must  have  been  accomplished 
"against  the  will"  of  the  person  robbed. 

It  is  urged  as  error  that  the  court  below  charged  "  identity 
of  ])ei'son  as  presumed  from  identity  of  name."  Identity  of 
person  is  a  deduction  which  the  law  expressly  directs  shall  be 
made  from  identity  of  name  (Code  Civil  Proc,  §§  1959,  19G3, 
subd.  25),  and  while,  under  our  constitution,  which  prohibits 
the  courts  from  charging  upon  matter  of  fact,  a  court  cannot 
instruct  a  jury  that  any  fact  is  an  "  inference  "  from  another 
act, —  as  an  inference  is  defined  by  section  1900  of  the  Code  of 
Civil  Procedure, —  tiie  court  is  authorized  to  declare  a  presump- 
tion of  law.  It  is  true  that  tiie  i)rosumptiou  of  identity  of 
person  from  identity  of  name  is  a  ditiputahle  i)resum])tion 
which  may  be  controverted  by  other  evidence  (Code  Civil 
Proc,  §  190c5),  but  the  defendant  introduced  no  evidence  to 
overcome  it,  and  no  injury  could  have  accrued  to  him  by  the 
omission  of  the  court  to  add  that  identity  of  name  only  created 
the  presumption  prima  fade. 

At  tlie  trial  the  prosecution  offered  in  evidence  the  deposi- 
tion of  Christian  Meyer  (prosecuting  witness),  taken  at  the  ex- 
amination before  the  committing  magistrate.  The  deposition 
was  admitted  over  the  objections  of  the  defendant.  To  the 
deposition  the  defendant  objected  that  it  does  not  show  the 
"grounds  or  reasons"  on  which  the  magistrate  sustuinod  an 
objection  to  a  question  ])ut  to  the  witness  on  cross-examina- 
tion; but  the  objection  to  the  question  was  that  it  was  "  irrel- 
evant and  immaterial,"  and  the  objection,  as  made,  was  sus- 
tained. It  would  be  difficult  to  state  more  clearly  "  the  ground 
on  which  the  question  was  overruled."  Penal  Code,  §  809, 
subd.  8.  As  to  the  alleged  refusal  of  the  witness  to  answer 
questions,  the  magistrate  in  one  instance  directed  him  to  an- 
swer, and  in  others  the  recalcitration  of  the  witness  was 
waived.  Besides,  the  "ground  "  on  which  the  witness  declined 
to  answer  questions  does  appear  in  the  deposition,  from  the 
statement  of  the  witness  itself. 

Appellant  further  objects  that  it  was  not  made  affirmatively 


PEOPLE  V.  RILEY. 


603 


words, 
orma- 
lislicd 
lished 


to  appear  that  Joseph  E.  ilich,  whose  certificate,  as  stenogra- 
pher, is  attached  to  the  deposition,  was  sworn  faithfully  to 
disciiarge  his  duty.     The  defendant  proved  by  Rich  that  he 
was  appointed  to  take  the  testimony  by  the  magistrate.    The 
statute  neither  requires  that  the  short-hand  reporter  shall  be 
sworn,  nor  that  the  fact  that  he  was  sworn  shall  appear  in  the 
deposition;  and  the  testimony,  as  written  out  in  long-hand  by 
the  short-hand  reporter,  is  only  evidence  />y'//«a  facie  of  its 
correctness.     Penal  Code,  §  8G9.    The  deposition  is  certified : 
"  State  of  California,   County  of  San  Bernardino:  I  hereby 
certify  the  foregoing  to  be  a  correct  transcript  of  the  examina- 
tion in   the   above-entitled  case.     [Signed]   Joskpu  E.  Eich, 
Stenographer."    The  statute  provides:  "When  written  out  in 
long-hand,  and  certified  as  being  a  correct  statement  of  such 
testimony'  and  proceedings  in  the  case,  shall  be  prima  facie 
evidence,"  etc.     Penal  Code,  §  8G9,  subd.  5.     It  is,  of  course, 
always  better  to  follow  the  language  of  the  statute,  but  we 
think  the  cei'tificate  substantially  complies  with  the  law.     In 
People  V.  Morine,  51  Cal.,  575, —  referred  to  by  counsel, —  there 
was  no  certificate. 

Defendant  also  objected  to  the  deposition  on  the  ground 
that  the  preliminary  evidence  was  not  sufficient  to  show  that 
the  witness.  Christian  Meyer,  was  either  dead,  insane  or  absent 
from  the  state.     Subpa'nas  were  sent  to  diiferent  counties  for 
service.     One  Neil,  an  acquaintance  of  Meyer,  gave  informa- 
tion that  he  was  at  a  certain  place  in  San  Diego  county,  but 
ho  couM  not  be  found  there.     There  was  evidence  that  he  had 
been  sought  for  "  pretty  much  all  over"  San  Bernardino  and 
San  Diego  counties;  that  inquiries  had  been  made  for  hhn  in 
Sacramento,  Sun  Francisco,   Stockton,   San    Jose,    Lathrop, 
AVoodhind,  Oakland,  and  "at  all  those  ])laces  along  the  line 
oF  the  Southern  Pacific  Eailroad."     There  was  no  direct  evi- 
dence that  he  was  in  the  state,  nor  any  evidence  tiiat  facts  had 
come  to  the  knowledge  of  the  prosecution  tending  to  prove 
the  whereabouts  of  the  witness,  which  had  not  been  acted  upon 
in  good  faith,  or  evidence  indicatingthat  the  witness  had  gone 
to  any  county  to  which   subpana  was  not  sent  for  service. 
The  court  was    fully   justified  in  finding  that   the   witness 
could  not.  with  due  diligence,  be  found  within  the  state,  and, 


h'4 


^H* 


'V 


604 


AMERICAN  CRIMINAL  REPORTS 


as  an  inference,  that  he  was  not  in  the  state.    People  v.  Gan- 
non, 61  Cal.,  476. 
Judgment  and  order  affirmed. 

"We  concur:  Skaels,  C.  J.;  Shakpstein,  J.;  McFarland,  J.; 
Patersox,  J. ;  TnoKNTON,  J. 


State  v.  Bryan. 

(34  Kan.,  63.) 

Seduction:  Information — Allegation — Evidence — Chastity — Reputation 

for  chastity, 

1.  Information  for  seduction  —  Allegations. —  An  information  is  suf- 

ficient under  section  36,  chapter  31,  Compiled  Laws  (Kansas),  1879, 
which  charges  that  one  B.,  a  male  person,  did  then  and  tlicre  unlaw- 
fully and  feloniously  obtain  illicit  connection  with  one  K.,  she,  the 
said  K.,  then  and  there  being  a  female  person  of  good  repute,  of  the 
age  of  only  seventeen  years,  and  the  said  B.  did  then  and  there  obtain 
such  illicit  connection  with  the  said  K.  aforesaid,  at  the  time  and 
place  aforesaid,  under  a  promise  of  marriage  then  and  there  made  by 
him,  the  said  B.,  to  her,  the  said  K. 

2.  Proof  op  particular  acts  of  illicit  intercourse  with  other 

MEN. —  Upon  the  trial  of  a  defendant  for  the  offense  charged  it  is  not 
competent  for  the  defendant  to  prove  particular  acts  of  unchastity  or 
specific  acts  of  illicit  intercourse  by  the  prosecutrix  with  other  persons. 
"It  is  the  reputation  and  the  age  of  the  female,  and  not  her  previous 
conduct,  that  bring  her  within  the  protection  of  the  statute." 

3.  Evidence  as  to  reputation  op  woman  for  chastity.— Where  the 

prosecutrix  has  recently  lived  in  the  neighborhood  of  the  witness, 
which  is  about  five  miles  from  her  own  home,  and  is  generally  ac- 
quainted in  that  neighborhood,  and  such  witness  knows  the  general 
reputation  of  the  prosecutrix  for  chastity  in  such  neighborhood,  but 
does  not  know  her  general  reputation  for  chastity  in  the  particular 
neighborhood  in  which  she  resides  at  the  time  of  the  trial,  such  wit- 
ness may  be  permitted  to  give  evidence  of  her  general  reputation  for 
chastity  in  his  neighborhood. 

4.  What  is  reputation  for  chastity  —  Negative  evidence.—  A  woman's 

reputation  for  chastity  is  what  the  people  of  her  acijuaintanco  gen- 
erally say.ot  her  in  this  regard ;  that  is,  the  general  credit  for  chastity 
which  she  bears  among  her  neighbors  and  acijuaintances.  If  a  woman's 
neighbors  and  acquaintances  say  nothing  of  her,  or  do  not  question 
her  character  fur  chastity,  then  her  reputation  in  this  regard  should 
be  considered  good. 


STATE  V.  BRYAN. 


603 


Ga/i' 


Appeal  from  Smith  County  District  Court. 
On  December  15,  1884,  there  was  filed  in  the  district  court 
of  Smith  county  the  following  information,  court  title,  verifi- 
cation and  indorsements  omitted : 

"  I,  the  undersigned,  prosecuting  attorney  of  said  county,  in 
the  name,  by  the  authority,  and  on  behalf  of  the  state  of  Kan- 
sas, give  information  that  on  or  about  the  3d  day  of  Novem- 
ber, A.  D.  1884,  in  said  county  of  Smith  and  state  of  Kansas, 
one  H.  B.  Bryan,  a  male  person,  did  then  and  there  unlaw- 
fully and  feloniously  obtain  illicit  connection  with  one  Hattie 
M.  Kinsley,  she,  the  said  Hattie  M.  Kinsley,  then  and  there 
being  a  female  person  of  good  repute  of  the  age  of  only  seven- 
teen (17)  years.  And  the  said  H.  B.  Bryan  did  then  and  there 
obtain  suph  illicit  connection  with  the  said  Hattie  M.  Kinsley 
aforesaid,  at  the  time  and  place  aforesaid,  under  a  promise  of 
marriage  then  and  there  made  by  him,  the  said  H.  B.  Bryan, 
to  her,  the  said  Hattie  M.  Kinsley,  contrary  to  the  form  of 
the  statute  in  such  case  made  and  provided,  and  against  the 
peace  and  dignity  of  the  state  of  Kansas. 

"  K.  M.  PicKLER,  Prosecuting  Attorney." 
Trial  had  at  the  December  term  of  the  court  for  1884,  be- 
fore the  court  with  a  jury.    The  court  (Smith,  J.,  presiding) 
instructed  the  jury  as  follows : 

"  In  this  case  it  is  charged  that  at  the  county  of  Smith  and 
state  of  Kansas,  and  on  or  about  the  3d  day  of  November, 
1884,  the  defendant  H.  B.  Bryan,  being  a  male  person,  did  ob- 
tain illicit  connection,  under  promise  of  marriage,  with  Hattie 
M.  Kinsley,  a  female  of  good  repute,  and  under  twenty-one 
years  of  age.  To  justify  a  conviction  in  this  case  the  state 
must  establish  by  the  evidence  beyond  a  reasonable  doubt  the 
guilt  of  the  defendant,  and  every  fact  in  the  case  essential  to 
show  his  guilt;  that  is  to  say,  that  before  you  find  the  defend- 
ant guilty,  you  must  be  satisfied  from  the  evidence  beyond  a 
reasonable  doubt  that  in  the  county  of  Smith  and  state  of 
Kansas,  and  at  or  about  the  time  charged,  and  within  two 
years  prior  to  the  filing  of  the  information,  the  defendant, 
H.  B.  Bryan,  being  a  male  person,  did  obtain  illicit  connectior. 
with  Hattie  M.  Kinsley;  that  at  that  time  said  Hattie  M. 
Kinsley  was  under  the  age  of  twenty-one  years,  and  was  a 
female  of  good  repute  for  virtue  and  chastity ;  and  that  the 


606 


AMERICAN  CRIMINAL  REPORTS. 


defendant  obtained  such  illicit  intercourse  with  said  Ilattle  M. 
Kinsley  under  a  promise  of  marriage.  It  is  essential  that  such 
illicit  intercourse  was  obtained  by  the  inducement  of  the  prom- 
ise of  marriage,  and  that  said  Hattie  M.  Kinsley  consented  to 
such  illicit  intercourse  by  reason  of  such  promise  of  marriage. 
There  may  have  been  any  number  of  other  reasons  or  induce- 
ments existing  or  offered  by  the  defendant;svhich  contributed 
to  impel  said  female  to  assent  to  such  intercourse.  To  justify 
a  conviction  in  this  case,  you  must  believe  beyond  a  reason- 
able doubt  that  the  defendant  obtained  illicit  intercourse  with 
Hattie  M.  Kinsley  under  and  by  reason  of  this  promise  to 
marry  said  Ilattio  M.  Kinsley,  without  which  promise  such 
intercourse  would  not  have  been  obtained.  The  burden  of 
proving  the  guilt  of  the  defendant  rests  upon  the  strife,  and  at 
no  stage  of  the  proceedings  does  the  burden  shift  upon  the  de- 
fendant to  prove  his  innocence.  You  are  the  exclusive  judges 
of  the  facts  in  this  case,  and  of  the  weight  of  evidence,  and  of 
the  credibility  of  the  witnesses;  and,  in  determining  the  weight 
to  be  given  to  the  evidence  of  any  witness,  you  nuiy  take  into 
consideration  the  interest  of  any  in  the  result  of  your  verdict, 
his  means  of  knowing  and  his  ability  to  remember  the  facts 
concerning  which  he  has  testified,  his  disposition  to  speak  the 
truth  or  otherwise,  and  all  other  circumstances  surrounding 
such  witness  in  connection  with  the  case;  and  should  you  be- 
lieve from  the  evidence  that  any  witness  has  wilfully  testified 
falsely  to  any  material  matter  in  this  case,  you  may  disregard 
the  whole  of  the  evidence  of  such  witness,  or  you  may  give 
such  evidence  such  weight  as  you  believe  it  entitled  to..  A 
woman's  repute  for  chastity  and  virtue  is  what  people  gen- 
erally of  her  acquaintance  say  of  her  in  this  regard.  It  is  the 
name  she  generally  bears  in  this  regard  among  her  neighbors 
and  acquaintances;  and  to  justify  you  in  finding  the  defend- 
ant guilty  in  this  case,  you  must  be  satisfied  from  the  evidence 
bevond  a  reasonable  doubt  that,  at  the  time  of  the  alleged 
intercourse  with  the  defendant,  said  Hattie  M.  Kinslev  was  of 
good  repute  for  chastity  and  virtue.  If  a  woman's  neighbors 
and  acquaintances  say  nothing  of  or  do  not  question  her  char- 
acter for  chastity  and  virtue,  then  her  repute  in  this  regard 
should  be  considered  good. 
"  You  are  further  instructed  that  you  may  consider  the  testi- 


' 


STATE  r.  BRYAN. 


C07 


mony  of  said  Ilattio  M.  Kinsley  in  determining  wiielher  or 
not  there  was,  at  tlie  time  of  the  alleged  intercourse,  a  subsist- 
ing promise  on  the  part  of  the  defendant  to  marry  her;  but 
the  testimony  of  said  JIattie  A[.  Kinsley  alone  is  not  sufficient 
evidence  to  establisli  such  fact;  and  unless  you  have  other  evi- 
dence of  such  fact,  you  must  find  the  defendant  not  gnilty. 
Should  you,  however,  believe  that  the  testimony  of  another 
witness  or  other  witnesses  corroborates  the  evidence  of  Ilattie 
M.  Kinsley  on  this  point,  or  should  the  circumstances  of  the 
case,  which  are  established  independently  of  the  testimony  of 
Hattie  M.  Kinsley,  corroborate  the  testimony  of  Ilattie  M. 
Kinsley  as  to  sucli  promise  of  marriage,  and  should  you  believe 
beyond  a  reasonable  doubt  that  the  defendant  did  promise  to 
marry  Ilattie  M.  ]vinsley,  as  charged,  then  you  will  find  such 
promise  of  marriage  as  a  fact  in  the  case." 

At  the  request  of  tlie  county  attorney  the  court  also  gave 
the  following  special  instructions: 

"Tiie  court  instructs  tlie  jury  that  in  determining  the  guilt 
or  innocence  of  the  defendant  tliey  may  take  into  considera- 
tion all  the  circumstances  of  the  case,  together  with  the  dif- 
ference in  age  and  inlolligence  of  the  parties,  if  any. 

"The  court  instructs  tlie  jury  that  if  the}' find  from  the  evi- 
dence the  defendant  guilty  of  obtaining  illicit  connection, 
under  promise  of  marriage,  with  Ilattie  M.  Kinsley,  a  female 
of  good  repute,  and  under  the  age  of  twenty-one  years,  at  any 
time  within  two  years  prior  to  the  date  alleged  in  the  informa- 
tion, that  evidence  tending  to  show  the  bad  reputation  of  the 
said  Ilattie  M.  Kinsley  after  the  alleged  commission  of  the 
crime  cannot  be  taken  into  consideration  in  determining  the  in- 
nocence of  the  defendant." 

At  the  request  of  the  defendant  the  court  gave  the  follow- 
ing special  instructions: 

"The  court  instructs  the  jury  that  any  promise  of  the  de- 
fendant to  marry  said  Ilattie  M.  Kinsley  made  after  the  act  of 
intercourse  will  not  sustain  the  charge  against  said  defendant; 
but  such  promise,  if  any  such  was  made,  can  only  be  considered 
by  you  as  a  circumstance  in  the  case  to  prove  the  former  con- 
tract, if  any  was  made. 

"The  court  instructs  the  jury  that,  before  you  can  find  the 
defendant  guilty,  you  must  find  that  said  Hattie  M.  Kinsley 


I'tf'S 


iff-  ■■!!    .. 


608 


AMERICAIir  CRIMINAL  REPORTS. 


\1\ 


was  a  person  of  good  repute  and  unmarried  at  the  time  of 
making  the  marriage  contract  with  the  said  defendant,  and 
under  twenty -one  years  of  age." 

The  jury  returned  a  verdict  of  guilt}'  of  the  offense  charged 
in  the  information  against  the  defendant.  A  motion  in  arrest 
of  judgment  was  made,  but  was  overruled ;  and  a  motion  for 
a  new  trial  was  made,  which  was  also  overruled.  Thereupon 
the  defendant  was  sentenced  to  be  confined  in  the  county  jail 
of  Smith  count}'  for  a  term  of  six  months  from  and  including 
December  26,  1884;  and  to  pay  a  fine  of  $1,000,  together  with 
all  the  costs  of  the  prosecution  taxed  in  the  case,  and  that  he 
stand  committed  to  the  jail  of  said  Smith  county  until  the  fine 
and  costs  were  paid.  The  defendant  excepted  to  the  rulings, 
sentence,  and  judgment  of  the  court,  and  brings  the  case  here. 

Corn  cfc  Ifi/ers,  for  &r  ^ .ellant. 

S.  B.  Bradford^  attorney-general,  Johi  Q.  lioyce  and  E.  A. 
Austin,  for  the  state. 

HoRTON,  C.  J.  The  appellant  was  convicted  for  a  violation 
of  section  30,  chapter  31,  Compiled  Laws  of  1879.  The  section 
reads  as  follows: 

"If  any  male  person  shall  obtain  illicit  connection,  under 
promise  of  marriage,  with  any  female  of  good  repute  under 
twenty -one  years  of  age,  he  shall  be  adjudged  guilty  of  a 
misdemeanor,  and  shall  be  punished  by  fine  not  exceeding 
$3,000,  or  by  imprisonment  not  exceeding  two  years,  or  by 
both  such  fine  and  \m\>T\sonment\  provided,  that  the  testimony 
of  the  woman  alone  shall  not  be  sufficient  evidence  of  a  prom- 
ise of  marriage." 

The  information  charges  the  offense  in  the  language  of  the 
statute.  The  appellant  moved  to  quash  the  same,  for  the  rea- 
son that  the  information  did  not  sufficiently  charge  that  the 
prosecutrix,  Hattie  M.  Kinsley,  was  of  good  repute  at  the  time 
of  the  marriage  contract;  that  the  information  did  not  charge 
that  the  prosecutrix  was,  at  the  time  of  the  marriage  contract, 
a  single  woman,  or  that  the  appellant  was  a  single  man ;  and 
that  the  information  did  not  allege  that  the  marriage  contract 
was  the  moving  cause  or  consideration  for  the  illicit  connec- 
tion. 


STATE  V.  BRYAN. 


009 


The  Information  did  charge  that  the  prosecutrix  was  of  good 
repute  at  the  time  of  the  marriage  contract  as  well  as  at  the 
time  of  the  illicit  connection,  as  the  promise  of  marriage  is  re- 
cited as  having  been  made  at  the  time  the  illicit  connection 
was  obtained.    The  information  reads  that  "on  or  about  No- 
vember 3,  1S84,  in  said  county  of  Smith  and  state  of  Kansas, 
one  II.  B.  Bryan,  a  male  person,  did  then  and  there  unlawfully 
and  feloniously  obtain  illicit  connection  with  one  Ilattie  M- 
Kinsley,  she,  the  said  Ilattie  M.  Kinsley,  then  and  there  being 
a  female  person  of  good  repute,  of  the  age  of  only  seventeen 
years,  and  that  the  said  II,  B.  Bryan  did  then  and  there  obtain 
such  illicit  connection  with  said  Ilattie  M.  Kinsley  aforesaid, 
at  the  time  and  place  aforesaid,  under  a  promise  of  marriage 
then  and  there  made  by  him,  the  said  11.  B.  Bryan,  to  her,  the 
said  Ilattie  M.  Kinslcv."    The  allegation  that  Brvan,  beins:  a 
male  person,  obtained  illicit  connection  with  the  female  se- 
duced under  a  promise  of  marriage  inferentially  charged  that 
the  female  was  a  single  person.     It  would  conform  to  the 
better  priictice  if  the  information  contained  an  express  aver- 
ment that  the  prosecutrix  was,  at  the  time  of  the  marriage 
contract  and  illicit  connection,  a  single  person;  but  as  the 
language  used  necessarily  implies  that  she  was  single  at  the 
time  stated,  and  as  the  appellant  could  not  have  been  misled 
or  prejudiced  by  anything  in  the  information,  we  think  it  was 
not  fatal  for  omitting  the  direct  averment  that  the  prosecutrix 
was  a  single  peison.     The  promise  of  marriage  in  such  a  case 
need  not  be  technically  valid,  and  it  would  be  no  defense  that 
the  defendant  was  married  and  could  not  make  such  a  promise. 
Thei'efore  it  was  not  necessary'  to  allege  that  the  appellant  was 
a  single  man.    2  Whart.  Crim.  Law  (8th  ed.),  §  1758.     As  the 
information  charged  that  the  illicit  connection  with  Hattie  M. 
Kinsley  was  obtained  by  the  appellant  under  a  promise  of 
marriage,  the  information  does  show  that  the  promise  of  mar- 
riage was  the  consideration  for  the  connection,  and  that,  itt 
submitting  to  the  appellant's  request,  Ilattie  M.  Kinsley  relied 
on  the  promise. 

On  the  cross-examination  of  the  prosecutrix  she  was  asked 
by  defendant's  counsel  a  number  of  questions,  which  were  ob- 
jected to,  and  the  objections  sustained.    Of  this  the  appellant 
complains.    The  questions  were  as  follows:     Q.  "You  may 
Vol.  VII  — 89 


610 


AMERICAN  CRIMINAL  REPORTS. 


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A'     ,;.  Mi^f^i 


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state  if  at  Mr.  Evey's,  at  a  party  on  Friday  night  before  your 
birthday,  hist  February  one  year  ago,  1SS3,  Al.  Williams  asked 
you  to  accommodate  him,  and  you  said, '  We  have  no  chance.' " 
Q.  "You  may  state  if,  at  Mr.  Evey's  party,  on  Friday  night 
before  your  birthday,  on  Thursday,  last  February  one  year  ago, 
1883,  Al.  Williams  asked  you  if  Bryan  (meaning  this  defend- 
ant) ever  asked  you  for  it,  and  you  said,  'No,  he  haint  got 
sense  enough.'"  Q.  "You  may  state  if,  at  a  party  at  Jim 
Wicks',  one  year  ago  last  March,  you  were  not  in  a  bed-room, 
in  the  dark,  alone  with  Jim  Wicks,  between  10  and  12  o'clock 
at  night?"  Q.  "  You  may  state  if,  at  that  same  party  at  Evey's, 
whether  or  not  Jim  Wicks  and  John  Evans  did  not  ask  you  to 
accommodate  them,  and  you  merely  laughed ?"  Q.  "State  if 
you  were  not  sick  in  the  fall  of  ISSO."  Q.  "  Is  it  not  the  fact 
that  3'ou  were  pregnant  in  the  fall  of  1880?"  Q.  "  Is  it  not  a 
fact  that,  between  the  12th  and  27th  days  of  September,  1880, 
you  came  to  Dr.  Ayer,  in  Smith  Center,  for  medicine,  claimmg 
to  the  doctor  that  you  had  a  cold,  when  in  fact  you  were  preg- 
nant?" Q.  "  Is  it  not  the  fact  that,  on  the  27th  day  of  Sep- 
tember, 1880,  you  came  to  Dr.  A\'er,  in  Smith  Center,  and  at 
that  time  you  and  your  mother  went  with  Dr.  Ayer  to  Dr. 
A3'er's  house,  and  the  doctor  made  a  private  examination  of 
you,  and  told  you  you  were  pregnant,  three  or  four  months 
gone?"  Q.  "How  long  did  you  keep  company  with  him 
(Irwin  Stevenson)?"  Q.  "Did  you,  before  the  defendant  was 
going  to  see  you,  have  intercourse  with  Irwin  Stevenson?" 

These  questions  did  not  relate  to  the  subject  of  the  examina- 
tion in  chief,  and  their  purpose,  therefore,  evidently  was  to 
establish  familiar  and  improper  conduct  on  the  part  of  the 
witness  with  other  persons  than  the  appellant;  or  to  obtain  a 
denial  of  such  conduct  of  the  witness  with  other  persons.  The 
•statute  determines  the  rule  as  to  the  character  of  the  evidence 
required  to  convict,  and  that  rule  is  "  good  repute  of  the  prose- 
cutrix." The  evidence,  therefore,  in  this  regard,  must  be  con- 
fined to  the  general  reputation  or  character  of  the  prosecutrix 
for  chastity;  and  the  character  of  the  prosecutrix  for  chastity, 
in  this  class  of  cases,  cannot  be  impeached  by  evidence  of 
particular  acts  of  uncbastity.  Proof  of  specific  acts  of  crim- 
inal intercourse  by  the  prosecutrix  with  other  persons  will  not 
do.    In  Bowers  v.  State,  29  Ohio  St.,  542,  in  a  conviction  upon 


STATE  V.  BRYAN. 


Gil 


a  statute  very  similar  to  ours,  the  following  language  is  used: 
"The  instruction  asked  by  the  defendant  and  refused  by 
the  court,  and  the  rejection  of  testimony  tending  to  show 
specific  acts  of  lewdness  on  the  part  of  the  prosecutrix,  raise 
the  same  question,  namely,  whether  the  protection  of  the 
statute  extends  to  all  females  under  the  age  of  eigliteen  whose 
reputation  for  chastity  is  good,  or  only  to  such  as  have  de- 
servedly acquired  that  reputation  by  a  pure  life.  It  seems 
to  us  that  the  plain  words  of  the  statute  leave  no  room  for 
doubt  on  this  question.  The  statute  provides  'that  any  person 
over  the  age  of  eighteen  years  who,  under  promise  of  marriage, 
shall  have  illicit  carnal  intercourse  with  any  female  of  good 
repute  for  chastity,  under  the  age  of  eighteen  years,  shall  be 
deemed  guilty  of  seduction.'  Language  could  hardly  be 
plainer.  It  is  the  reputation  and  the  age  of  the  female,  and 
not  her  previous  conduct,  that  bring  her  within  the  protection 
of  the  statute.  The  law  wisely  and  justly  accords  to  the  erring 
female  a  locus  poanitentim.  If  she  has  repented  of  her  past 
error,  and  by  her  upright  walk  acquired  an  unimpeachable 
reputation  for  cliastity,  the  law  protects  her  against  the  man 
who  overcomes  her  good  resolves  b}'  a  promise  of  marriage. 
It  is  the  purity  and  integrity  of  her  mind,  and  not  merely 
those  of  her  person,  that  the  law  designs  to  guard  against  the 
attacks  of  the  seducer;  and  it  looks  alone  to  her  general  repute 
as  evidence  of  that  purity  and  integrity.  "We  think,  therefore, 
that  the  court  was  right  in  excluding  evidence  of  specific  acts 
of  intercourse  by  the  prosecutrix  with  persons  other  than  the 
defendant." 

In  many  of  the  states  the  statute,  instead  of  reading  "of 
good  repute,"  provides  that  the  female  shall  be  "  of  previous 
chaste  character."  Under  such  a  statute  the  character  of  the 
prosecutrix  may  be  impeached  by  proof  of  specific  acts  of 
lewdness.  Eenyon  v.  People,  26  N.  Y.,  203;  Carpenter  v.  Peo- 
ple, 8  Barb.,  603 ;  Polk  v.  State,  40  Ark.,  402 ;  People  v.  Brewer, 
27  Mich.,  134;  People  v.  Clark,  33  Mich.,  112.  These  decisions 
are  not  applicable  to  our  statute,  and  therefore  no  comment 
upon  them  is  necessary  from  us. 

Again,  as  proof  of  want  of  chastity  does  not  tend  to  prove 
want  of  truthfulness,  the  attempted  cross-examination  was  not 
competent  to  affect  the  credit  of  the  prosecutrix.    The  testi- 


012 


AMERICAN  CRIMINAL  REPORTS. 


mony  of  Dr.  Ayer,  Alice  Evans  and  Al.  "Williams,  of  specific 
acts  of  unchastity  on  the  part  of  the  prosecutrix  with  other 
persons  than  the  appellant,  was  inadmissible  for  the  reasons 
already  stated. 

The  exceptions  taken  to  some  of  the  testimony  offered  on 
the  part  of  the  state  tending  to  show  that  the  prosecutrix  was 
a  female  of  good  repute  for  chastity  are  not  tenable.  While 
the  witnesses  objected  to  testified  that  "they  did  not  know 
the  general  reputation  of  the  prosecutrix  for  chastity  in  the 
neighborhood  in  which  she  resided  at  the  time  of  the  trial, 
that  is,  the  neighborhood  about  twelve  miles  north  of  Smith 
Center,  but  they  testified  further  that  they  had  been  acquainted 
with  her  about  five  years;  that  she  had  resided  in  the  neigh- 
borhoods where  the  witnesses  lived;  t!iat  she  was  generally 
acquainted  in  said  neighborhoods;  and  that  they  knew  her 
general  reputation  for  chastit}'  in  such  neighborhoods."  These 
witnesses  resided  only  five  miles  from  the  home  of  the  prose- 
cutrix. All  this  tended  to  prove  the  general  reputation  of  the 
prosecutrix  for  chastity,  and  therefore  was  sufficient  to  go  to 
the  jury  for  their  consideration.  In  a  case  of  this  kind,  of 
course,  it  must  bo  shown  on  the  pjirt  of  the  state  that  the 
prosecutrix  was,  at  the  time  of  the  illicit  connection,  of  good 
repute;  but  it  is  unnecessarj'  to  confine  the  repute  to  one 
particular  locality  if  the  female  seduced  has  resided  in  difTerrnt 
neighborhoods. 

Again,  it  well  might  be  that  a  person  not  resit  .  the 

immediate  neighborhood  of  the  witness  sought  to  bo  peached 
would  have  as  ample  and  accurate  knowledge  as  to  lIm;  repu- 
tation of  such  witness  among  his  or  her  neiglibors  as  one  who 
did.  Wallis  v.  White,  58  AVis.,  27;  People  v.  Lyons,  51  Mich., 
215;  Kelley  v.  State,  61  Ala.,  19;  Ilolliday  v.  Cohen,  34  Ark., 
707;  Railway  Co.  v.  Richardson,  66  Ind.,  43. 

We  have  examined  the  instructions  refused  and  those  given, 
and  also  the  comments  of  counsel  regarding  the  same.  We 
perceive  no  material  errors  in  these  matters,  and  the  observa- 
tions made  cover  substantially  all  the  points  presented.  In 
the  language  of  the  instructions,  a  woman's  reputation  for 
chastity  "  is  what  the  people  of  her  acquaintance  generally 
say  of  her  in  this  regard;  that  is,  the  general  credit  for  chas- 
tity which  she  bears  among  her  neighbors  and  acquaintances." 


STATE  V.  BRYAN. 


613 


If  a  woman's  neighbors  and  acquaintances  say  nothing  of 
her,  or  do  not  question  her  character  for  clmstity,  t)ion  her 
reputation  in  this  regard  should  bo  considered  good.    "  Tht 
best  character  is  generally  that  which  is  the  least  talked 
about."    Therefore  the  negative  evidence  of  a  witness  "that 
he  never  heard  anything  against  the  character  of  the  woman 
for  chastity"  on  whose  behalf  ho  had  been  called,—  that  is, 
"  that  he  never  heard  her  conduct  criticised,  condemned,  or 
even  talked  about,"— is  admissible  upon  the  trial  where  the 
reputation  of  the  woman  for  chastity  is  in  question,  and  is 
strong  evidence  of  the  woman's  good  repute.    1  "Whart.  Law 
of  Ev.,  §  49;  16  Cox,  34;  Gandolfo  v.  State,  11  Ohio  St.,  114; 
lieffina  v.  liowton,  L.  &  C.  Crown  Cases,  18G1-G5,  pp.  520-544. 
Upon  the  record  the  judgment  of  the  district  court  must  be 
affirmed. 

(All  the  justices  concurring.) 

Note.—  In  an  action  for  seduction  it  is  not  Bufficiont  to  establish  the 
fact  of  the  sexual  intercourse,  but  it  must  be  shown  that  the  seducer  ac- 
complished his  purpose  by  some  false  promise  or  artifice,  or  that  the  woman 
was  induced  to  yield  by  flattery  or  deception.  Where  the  woman  kept 
company  with  the  seducer  knowing  that  his  only  object  was  to  have  sexual 
intercourse  with  her,  and  the  only  means  used  by  him  were  threats  that  if 
she  would  not  yield  he  would  abandon  her  company,  and  go  with  others, 
and  she  then  voluntarily  submitted,  it  was  held  that  she  could  not  recover. 
Baird  v.  Boehner,  72  la.,  318. 


INDEX. 


ABDUCTION. 

1.  Previous  unchaste  conduct  of  person  abducted.— The  gist  of  the 

offense  of  abduction  of  a  female  under  the  age  of  eighteen,  for  the 
purpose  of  prostitution,  under  Penal  Code  of  California,  section  267,  is 
the  taliing  away  of  the  child  against  the  will  of  the  person  having  lawful 
charge  of  lier,  and  it  is  no  defense  that  the  child  has  previously  been 
guilty  of  unchaste  conduct,  and  evidence  of  such  conduct  is  not  ad- 
missible.   PeoiAe  V.  Demousset,  1. 

2.  TAKiNf*  BY  force  —  INDUCEMENT.—  To  constitute  the  crime  of  abduction 

under  Penal  Code  of  California,  section  267,  it  is  not  necessary  that  the 
taking  should  be  by  force,  but  it  will  be  sufficient  if  the  child  was  in- 
duced by  the  defendant  to  leave  the  custody  of  her  mother.  Id,  (See 
note.) 

;}.  Evidence.—  In  an  indictment  for  abiluction  under  Penal  Code  of  Cali- 
fornia, section  267,  where  tlie  girl  abducted  testiiied  that  the  defend- 
ant sugm'wtfd  to  her  tiiiit  she  should  leave  home  because  he  was 
afraid  that  her  motiier  would  fimi  out  the  relations  existing  between 
the  defendant  and  her,  and  that  she  should  leave  on  the  false  pretense 
that  her  step-father  was  trying,  or  had  tried,  to  have  sexual  intercourse 
with  lier,  and  that  slio  left  home  solely  on  the  suggestion  and  in  con- 
aequence  of  the  tlneats  of  the  defendant,  and  the  girl's  mother  testi- 
fied that  she  consented  to  the  girl  going  away  from  home  on  account 
of  this  charge,  ami  that  the  defendant  supported  its  truth,  evidence 
that  the  girl  had  in  fact  iiad  sexual  intercourse  is  immaterial,  as  bear- 
ing solely  on  a  collateral  question,  and  therefore  inadmissible.    Id. 

4.  Instructions  — General  charcje  —  Particular  point.— Where  the 
court  has  charged,  in  general  terms,  that,  if  the  jury  find  that  any 
witness  has  wilfully  sworn  falsely  upon  any  material  point,  the  entire 
testimony  of  such  witness  is  to  be  distrusted,  it  need  not  instruct  the 
jury  that  testimony  upon  a  particular  point  is  material,  and  that  if  a 
certain  witness  has  sworn  falsely  upon  that  point  his  entire  testimony 
is  to  be  distrusted.    Id, 


ABANDONMENT  OF  FAMILY. 

1.  Husband  and  wife  — Abandonment.— In  a  prosecution  under  Code 

of  Alabama.  1H86,  section  4047,  ft)r  abandoning  one's  wife  and  child, 
and  leaving  them  in  danger  of  becoming  a  burden  to  the  public,  it  need 
not  be  shown  that  the  danger  of  their  becoming  a  burden  to  the  public 
is  immediate  or  imminent;  but  it  is  sufficient  to  show  ihey  will  prob- 
ably become  su  jh  a  burden  within  a  reasonable  time,  and  in  the  ordi- 
nary course  of 'j  vents.    Carney  v.  Utate,  7. 

2.  Evidence  of  wife's  infidelity.— In  such  case,  evidence  that  defend- 

ant went  to  an  acsignation-house,  where  he  heard  voices  of  women, 
and  saw  an  unknown  female  clandestinely  escaping  from  the  prem- 
ises, and  thiit  the  kee|ier  of  the  house  subsecpiently  told  him  that  such 
female  was  his  wife,  was  properly  excluded  as  too  remote  to  establish 
the  Identity  of  the  female  as  defendant's  wife.    Id, 


616 


AMERICAN  CRIMINAL  REPORTS. 


\l 


3.  Evidence  that  the  defendant's  wife  had  not  earned  her  own  livini; 
since  the  birth  of  her  child,  and  that  her  brother-in-law,  %vho  was  su|i- 
porting  her,  had  a  large  family,  is  admissible,  as  tending  to  show  t'.Mi 
probability  of  the  family  becoming  a  burden  to  the  public.    Iff- 

ABATEMENT,  PLEA  IN. 
See  Former  Jeopardy,  2.    Grand  Jury,  1-3.    Practice. 

ABORTION. 
See  Practice,  Benedict  v.  State,  11.    Evidence,  10, 11. 

ACCOMPLICE. 

1.  Conviction— Corroboration  of  accomplice.— The  sufficiency  of  evi- 
dence corroborating  an  accomplice  and  tending  to  connect  the  ac- 
cused with  the  commission  of  the  crime  charged  is  in  the  province  of 
the  jury.    State  v.  Deitz,  22.    (See  note,  p.  24.) 

"2.  Evidence  — Accomplice  — Corroboration.— In  a  trial  under  an  in- 
dictment the  evidence  of  an  accomplice  may  be  corroborated  as  to 
any  material  fact,  even  though  that  fact  does  not  necessarily  connect 
the  prisoner  with  the  offense.  State  v.  Maney,  25.   (See  note,  pp.  30,  31.) 

3.  Instructions  —  Credibility  of  accomplice.— Where  the  court,  in 
charging  the  jury,  instructed  them  tliat  they  have  the  riglit  to  return 
a  verdict  of  guilty  upon  the  naked  testimony  of  an  accomplice,  but 
ought  never  to  do  so  unless  such  evidence  is  so  clear,  strong  and  con- 
vincing as  to  remove  every  reasonable  doubt  of  the  accused's  guilt, 
such  instruction  is  to  be  taken  in  connection  with  a  caution  previ- 
ously given,  that  an  accomplice's  evidence  is  to  be  received  with  great 
caution,  and  that  it  is  generally  unsafe  to  convict  upon  his  uncor- 
roborated testimony;  and  the  verdict  will  not  be  reversed,  on  ap[)eal, 
on  the  ground  that  the  court,  in  effect,  directed  the  jury  to  give  the 
same  credence  to  an  accomplice's  evidence  as  to  that  of  any  other 
person.    Id, 

See  Murder,  8-10. 

ADMISSIONS  AND  CONFESSIONS. 
See  Evidence,  25.    Rape,  8. 


ADULTERATION. 

1.  Constitutional  law  — What  justifies  the  judiciary  in  dect^aring 

AN  act  void. —  Nothing  but  a  clear  violation  of  the  constitution  —  a 
clear  usurpation  of  power  prohibited  —  will  justify  the  judicial  depart- 
ment in  pronouncing  an  act  of  tiie  legislative  dep:trtment  unconstitu- 
tional and  void.    Powell  v.  Commonwealth,  32.    (See  note,  pp.  55-57.; 

2.  Legislative  power  — Extent  — Limitations.— In  creating  a  legisla- 

tive department  and  conferring  upon  it  the  legislative  jjower,  the 
people  must  be  tinderstood  to  have  conferred  the  full  and  complete 
authority,  as  it  rests  in  and  may  be  exercised  by  the  sovereign  powei 
of  an}'  state,  subject  only  to  such  restrictions  as  they  have  seen  fit.to 
impose,  and  to  the  limitations  which  are  contained  in  the  constitution 
of  the  United  States.     Id. 

8.  Police  powers  —  Extent.—  The  police  powers  of  a  state  extend  to  the 
protection  of  the  lives,  limbs,  healtii,  comfort  and  quiet  of  all  per- 
sons, and  the  protection  of  all  property,  within  the  state.    By  the  ex- 


INDEX. 


617 


hvin;; 

8Sll|)- 


ercise  of  police  powers,  persons  and  property  are  subjected  to  all  kinds 
of  restraints  and  burdens  in  order  to  secure  the  general  comfort 
health  and  prosperity  of  the  state.    Id. 

4.  Adulteration  of  DAruYPKODUcrs.— The  Pennsylvania  act  of  May  21, 
188o(P.  L.,  22),  entitled  "  An  act  for  the  protection  of  the  public  health, 
and  to  prevent  adulteration  of  dairy  products,  and  fraud  in  the  sale 
thereof,"  is  a  valid  execution  of  the  police  power,  and  not  unconstitu- 
tional.   Id. 

Affirmed  by  United  States  supreme  court,  137  U.  S.,  678. 

ADULTERY. 

KNOWLEDaE  OP  FORMER  MARRIAGE.—  When  a  formal  marriage  is  cele- 
brated, under  license,  by  an  officer  having  authority,  but  the  man  has 
another  wife  living,  the  marriage  is  unlawful ;  but  the  woman  is  not 
criminally  guilty  of  living  in  adultery  (Code,  §  4184)  unless  it  is  shown 
that  she  had  knowledge  of  the  former  marriage,  or  continued  the  co- 
habitation after  acquiring  knowledge ;  "  and  the  proof  or  presumption 
must  be  strong  enough  to  repel  all  reasonable  doubt."  Vauglian  v. 
State,  58.    (.See  note,  p.  61.) 

ALIBI. 

1.  Evidence  —  Alibi. — Instructions  concerning  evidence  and  effect  of 
proving  an  alibi  reviewed,  and  held  not  erroneous.  People  v,  Lee 
Qam,  61. 

~.  Instructions  —  Alibi  —  Reasonable  doubt.— On  atrial  for  murder, 
where  an  alibi  is  set  up  as  a  defense,  an  instruction  was  not  improp- 
erly refused  that  "  if  you  [the  jury]  believe  that  the  knife  and  pistol 
which  are  said  to  have  been  found  near  tiie  deceased  at  the  time  of  the 
arrival  of  the  otHcers  were  the  property  of  the  deceased,  you  will  give 
the  defendant  tlie  benefit  of  every  rational  doubt  growing  out  of  such 
circumstances."  Such  instruction  was  misleading,  and  the  jury  could 
noi  understand  therefrom  whether  tiie  rational  doubt  must  be  of  de- 
fendant's guilt  or  of  some  other  matter  of  an  uncertain  nature.    Id. 

See  p.  64,  note. 


APPEAL  AND  ERROR. 

1.  Admission  of  irrelevant  testimon\  —  Doctrine  of  harmless  error. 

In  a  criminal  case  the  admission  of  irrelevant  evidence  against  the 
objection  of  the  defendant  will  work  a  reversal,  although  the  appel- 
late court  may  not  be  able  to  see  that  injury  thereby  resulted  there- 
from.    Vauglian  v.  State,  58. 

2.  Appeal  —  Presumption— Trial.—  During  the  argument  of  the  case  to 

the  jury  tlie  district  attorney  commented  upon  the  failure  of  the  ac- 
cused to  testify,  whereupon  his  counsel  objected,  but  the  court  over- 
ruled the  objection.  The  jury  knew  from  the  evidence  tiiat  the 
accused  had  liot  been  sworn,  and  had  admitted  his  guilt.  Held,  under 
the  circumstances,  and  it  not  appearing  of  record  just  what  the  dis- 
trict attorney  said,  and  what  was  tiie  occasion  of  it,  that  it  must  be 
presumed  that  something  occurred  or  was  said  which  rendered  tlie 
remark  proper.  Nichols  v.  State,  106. 
See  Practice,  1. 

8.  Verdict  —  Irregularities  by  jury.— A  verdict  in  a  capital  case  will 
not  be  set  aside  unless  tlie  irregularities  committed  by  the  jury  be  of 
a  nature  to  raise  a  suspicion  that  they  may  have  prejudiced  the  pris- 
oner.    Ittua  V,  State,  254. 


618 


AMERICAN  CRIMINAL  REPORTS. 


4.  Sufficiency  of  evidence  —  Review  on  appeal.—  Tlie  verdict  of 
guilty  in  a  criminal  action  will  not  be  set  aside  on  appeal  because  the 
evidence  is  weak  if  there  is  not  such  lack  of  evidence  as  shows  it  was 
clearly  erroneous.    State  v.  Kirkpatrick,  334. 

6.  New  trial — Remarks  of  counsel. —  Where  there  was  no  evidence 
whatever  in  this  proceeding  to  sustain  the  charge  of  manslaughter 
contained  in  the  last  count  of  the  information,  it  is  improper  fur  the 
prosecuting  attorney,  in  bis  argument  to  tl)e  jury,  to  assume  that 
there  was  such  evidence.    People  v.  Aiken,  345. 

6.  Amended  transcript  op  record  on  appeal.—  In  this  case  the  orig- 
inal transcript  of  the  record  exliibited  an  indictment,  imperfect  by  an 
omission  of  tiie  recital  at  the  beginninvr  of  the  indictment  of  the 
words,  '"  come  the  grand  jury."  Tlie  additional  transcript  of  the  rec- 
ord filed  in  the  supreme  court,  on  leave  given  for  that  purpose,  presents 
the  same  recitals  as  the  original  transcript ;  wilii  the  insertion,  in  the 
proper  place,  of  the  words  "  come  the  grand  jury."  The  certificate  to 
the  original  transcript  by  the  clerk  ot  the  court  in  which  the  record 
remains  is  held  to  import  verity,  and  cannot  be  contradicted  by  ex 
parte  affidavits.  The  omission  of  ihe  words  above  set  out  is  further 
neld  to  be  not  such  an  imperfection  as  to  invahihite  the  trial  and  con- 
victiou  on  such  an  indictment.    Hughes  v.  People,  ^Qi, 


! 


ARREST. 

Wrongful  arrest  —  Liability  of  by-stander  assisting  officer.— 
A  sheriff  or  other  lawful  officer  may  require  any  by-stander  to  assist 
him  in  niakint;  arrest,  and  a  refusal  to  assist  him  is  a  criminal  offense 
(Code,  §f?  4139,  4G60);  and  though  the  olBcer  may  be  a  trespasser  in 
making  the  arrest, —  as  by  arresting  one  i)erson  under  a  warrant  of  ar- 
rest for  another, —  a  by-stander  assisting  liim  on  demand,  knowing  his 
official  character,  is  not  criminally  responsible.     Watson  v.  State,  64. 

Arrest  under  wauhant  —  Peace  officers  —  Taking  and  detention 
of  chattels  as  evidence  to  be  used  on  prosecution  for  a  mis- 
demeanor.—  When  a  person  is  arrested  for  committing  a  felony  or 
niisdeineanor,  any  property  in  his  possession  believed  to  have  been 
used  by  him  for  the  purpose  of  committing  the  offense  may  be  seized 
and  detained  as  evidence  in  support  ot  the  charge ;  and,  if  necessary, 
such  property  may  be  taken  from  him  by  force,  [)rovided  no  unneces- 
sary violence  is  used.    Dillon  v.  O'Brien  <&  Davis,  CO. 


ARSON. 

Burning  insured  building  at  request  of  owner.—  A  person  who 
burns  a  gin-house  insured  against  tire,  by  the  recjuest  of  the  owner,  to 
enable  him  to  obtain  the  insurance  money,  is  guilty  of  the  special  of- 
fense defined  by  code  of  Alabama,  section  434'J,  and  liable  to  the  pun- 
ishment therein  prescribed ;  but  he  is  not  guilty  of  arson  in  the  second 
degree  as  described  in  section  4347,  declaring  that  '  any  person  wlio 
wilfully  sets  fire  to  or  burns  any  church  .  .  .  or  gin-house,  .  .  . 
which,  with  the  property  therein  contained,  is  of  the  value  of  f  1500  or 
more,  is  guilty  of  arson  in  the  second  degree; "  and  he  cannot  be  con- 
victed on  an  indictment  drawn  under  the  latter  section.  Heard  v. 
State,  74.    (See  note,  pp.  77-79.) 

Arson  —  Threats  —  Motive.— The  respondent  was  charged  with  burn- 
ing a  barn.  There  was  evidence  showing  threats  and  hostility  towanN 
one  having  cattle  in  it.  Held,  that  circumstantial  evidence  tending  t<: 
show  that  respondent  knew  that  such  person's  cattle  were  in  the  barn 
wlHiii  burned  was  admissible  to  show  motive.    State  v.  Emern,  203. 


INDEX. 


ASSAULT  WITH  INTENT  TO  MURDER. 


619 


1.  Verdict  in  absence  op  accused.—  The  rule  derived  from  common- 
law  authorities  is  that  in  criminal  cases  the  character  of  the  punish- 
ment determines  the  power  of  the  jury  to  render  a  privy  verdict,  or, 
what  is  the  same  thinj?,  a  verdict  in  the  absence  of  the  accused.  The 
circumstance  that  takes  away  such  power  is  that  the  case  is  one  in- 
volving life  or  member.    Jackson  v.  State,  80.    (See  note,  p.  83.) 

3.  Assault  with  intent  to  commit  murder  was  only  a  misdemeanor  at 

common  law,  retains  that  character  in  the  statute,  and  is  punishable 
as  at  common  law  by  fine  and  imprisonment.  In  all  criminal  cfisea 
not  capital  a  verdict  taken  without  the  presence  of  tlie  a-icused  ifi  not 
irregular.    Id. 

8.  Upon  a  trial  of  an  assault  on  A.  with  intent  to  murder,  in  which  the 
defense  was  that  B.  and  not  the  prisoner  made  tiie  assault,  evidence 
of  threats  of  B.  against  A.  was  held  inadmissible.  State  v.  Beau- 
dit,  84. 

4.  It  is  also  inndmissible  to  show  flight  of  a  third  person  or  confession  of 

guilt.    Id, 

ASSAULT  WITH  INTENT  TO  RAPE. 

Upon  an  indictment  which  charges  a  prisoner  with  an  attempt  to  rape,  the 
prosecutrix  may  be  cross-examined  as  to  the  fact  of  her  having  had 
connection  with  the  prisoner  previously  to  the  commission  of  tlie  al- 
leged offense ;  and  should  she  deny  the  fact  of  such  connection  liav- 
ing  taken  place,  evidence  may  be  given  in  order  to  contradict  such 
denial.    Reg.  v.  Riley,  97.    (See  note,  p.  100.) 

ATTORNEY  AND  CLIENT. 

Attorney  and  client  —  Privilkoed  communications.—  The  statements 
of  one  accused  of  crime,  made  to  one  whose  regular  employment 
is,  and  for  many  years  has  been,  practicing  law  before  justices  of 
the  peace,  and  wliose  aid  and  counsel  is  souglit  as  such  attorney  or 
counselor,  such  statements  being  made  in  answer  to  the  inquiries  of 
8uci>  adviser  as  to  what  the  facts  concerning  the  alleged  offense  were, 
are  privileged  communications,  and  it  is  error  to  allow  such  adviser  to 
testify  upon  the  trial  of  tlie  accused  to  the  statements  so  made,  al- 
though the  witness  had  not  been  admitted  to  practice  in  the  courts  of 
the  state,    Benedict  v.  State,  11. 

BILL  OF  PARTICULARS. 
See  Conspiracy  to  Defraud,  etc.,  1. 


BLACKMAIL. 

Blackmail— What  constitctes  a  threat  to  extort.— A  false  accu- 
sation in  writing  of  having  begotten  a  child  by  illicit  sexual  inter- 
course, the  charge  being  known  by  the  party  making  it  to  be  false, 
accompanied  with  a  suggestion  that  legal  proceedings  will  be  taken 
unless  the  person  against  whom  it  is  made  purchases  silence,  may  be  a 
threat  within  Penal  Code  of  New  York,  section  558,  making  it  a  crime 
for  one  to  send  a  letter,  knowing  the  contents  thereof,  making  such  a 
threat  with  intent  to  extort  money,  although  in  form  the  accused  h 
simply  called  u|)on  to  render  satisfaction  lor  that  which,  if  the  charge 
was  true,  would  entitle  the  accuser  to  pecuniary  conipensation;  and  a 
conviction  t.n  evidence  tending  to  prove  such  allegations  in  the  indict- 
ment will  be  attirmed.     People  v.  Wiuhtman,  101. 


620 


AMERICAN  CRIMINAL  REPORTS. 


BODY-STEALING. 


1.  Exhumation  by  public  authorities.—  Penal  Code  of  New  York,  section 

211,  which  provides  that  a  person  who  removes  a  dead  body  of  a  human 
being,  or  any  part  thereof,  from  a  grave  or  other  place  while  await- 
ing burial,  without  authority  of  law,  with  intent  to  steal  the  same,  or 
for  the  purpose  of  dissection,  or  for  procuring  a  reward  for  the  return 
of  the  same,  or  from  malicf?  or  wantonness,  sliall  be  punished  by  tine 
and  imprisonment,  has  rj  apiilication  where  a  body  is  exliuined  by 
the  legally  constituted  authorities,  and  dissected  by  their  direction, 
for  the  purpose  of  ascertaining  whether  death  had  been  produced  by 
poison.     People  v.  Fitzyerald,  103. 

2.  Irregularities  op  coronek. —  In  a  criminal  indictment  against  a  per- 

son at  whose  instance  the  coroner  exlmmed  a  body  and  caused  it  to 
be  dissected,  any  irregularities  on  the  part  of  tlie  coroner  in  failing  to 
impanel  a  jury  will  not  be  sufiieiont  to  deprive  his  acts  of  tlieir  legal 
authority  so  as  to  convict  the  accused  of  body-stealing.    Jc4 

BREAKING  AND  ENTERING  RAILROAD  CAR. 

1.  Indictment  —  Breaking  into  railroad  car.—  Revised  Statutes  of  Wis- 

consin, section  4410,  punishes  any  person  who  shall  enter  in  tiie  night- 
time without  breaking,  or  shall  break  and  enter  in  the  day-time,  any 
railroad,  freight  or  passenger  car,  with  intent  to  commit  umnler,  rob- 
bery, larceny,  or  other  felony.  Held,  that  an  indictment  under  tliis 
section,  charging  one  with  breaking  and  entering  the  car,  without 
specifying  whether  by  day  or  night,  in  effect  charges  liim  with  break- 
ing and  entering  in  tiie  day-time.     Nichols  v.  State,  10(J, 

2.  What  is — Concealment. —  The  accused  concealed  himself  in  a  chest, 

and  had  himself  shipped  in  an  express  car,  and  in  that,  way  gained  ad- 
mission to  the  car,  with  intent  to  assault  and  rob  the  express  messenger 
while  the  train  was  en  route.  Held,  this  was  a  breakimj  and  entering 
the  car,  within  the  meaning  of  tlie  statute.  The  word  "  break,"  hav- 
ing a  fixed  and  definite  meaning  at  common  law,  must  be  presumed 
to  have  been  used  in  that  sense  in  section  4410.    Id. 

8.  Description  of  locus  in  quo  — Railroad  cars,— The  indictment 
charging  the  offense  as  having  been  committed  in  "  freight  and  ex- 
press car  of  the  American  Express  Company "  sufficiently  describes 
"a  railroad,  freight  or  piissenger  car."  Witliin  the  meaning  of  sec- 
tion 4410,  an  express  car  is  a  freight  car.    Id. 

4.  Evidence  —  Ownership. —  It  is  not  necessary  to  prove  distinctly  that 
the  car  mentioned  was  the  property  of  the  American  Express  Com- 
panj^  Proof  of  exclusive  occupancy  and  control  of  the  car  by  the 
express  company  was  bufficieut  proof  of  ownership.    Id, 


BRIBERY. 

1.  Township  trustee  — Receiving  bribe.— An  indictment  against  a 
township  trustee,  whose  duty  it  was  to  purchase  and  furnish  school 
furniture  and  supplies,  based  upon  section  2005),  Revised  Statutes  of 
Indiana  of  1881,  charging  that  on  a  certain  da|r  he  "  unlawfully,  fe- 
loniously and  corruptly  accepted  from  one  Pollard  the  sum  of  $3,500 
in  money  as  a  bribe,  and  to  influence  him  as  such  trustee  in  the  dis- 
charge of  his  duties  as  such  trustee,  and  that  he  was  influenced  as 
such  trustee  by  the  acceptance  of  the  money  to  enter  into  a  contract 
with  said  Pollard  for  the  purchase  from  him,  in  behalf  of  and  for  the 
use  of  the  scliool  townshi[),  of  a  large  amount  of  school  furniture, 
material  and  supplies  to  the  amount,  price  and  value  of  $10,000,"  ia 
sufficient  on  motion  to  quash,  although  there  is  no  description  of  the 
property,  nor  statement  of  the  terms  of  the  contract,  uor  cliarge  that 


INPEX. 


621 


the  property  was  not  worth  all  he  paid  for  it,  and  although  it  is  not 
speciHcally  averred  that  the  money  was  given  with  the  intent  of  in- 
ducing an  act  for  the  beuetit  of  the  giver.  Glover  v.  State.  113.  (See 
note,  pp.  124,  125,  120.) 

Contract  for  supplies  obtained  by  bribe.—  It  is  not  material  to 
such  a  prosecution  whether  tiie  contract  was  in  writing,  and  such  a 
one  as  could  have  been  enforced  or  not;  tlie  question  being  not 
whether  the  accused  made  a  contract  binding  upon  the  township,  but 
whether  he  accepted  a  bribe  to  influence  his  oittcial  conduct.    Id. 

Evidence  —  List  op  warrants  —  Consideration.—  Upon  the  trial  of 
such  prosecution  a  letter  to  the  accused  containing  a  list  of  warrants, 
and  asking  him  if  tiiey  were  signed  by  him,  is  admisaible  in  evidence 
in  connection  with  the  testimony  of  another  that  the  accused  had 
shown  it  to  him,  and  stated  that  it  was  a  correct  list  of  the  orders  is- 
sued and  delivered  to  Pollard  {from  whom  ho  received  the  bribe),  and 
that  they  were  so  issued  nnd  delivered  in  consideration  of  the  money  he 
had  received  from  said  Pollard.    Id. 


BURGLARY. 

1.  Burglary— Possession  of  stolen  property.— The  finding  of  recent 
stolen  property  in  the  possession  of  a  defendant  is  not  sufilcient  to 
support  a  conviction  for  burglary  without  other  corroborating  circum- 
stances.    People  V.  Flijnn,  120.    (See  note,  pp.  131,  133.) 

3.  Sufficiency  of  evidence.- In  a  prosecution  for  burglary,  although 
the  fact  that  defendant  was  seen  near  the  place  where  and  about  the 
time  when  the  burglary  was  committed  is  a  material  circumstance,  a 
conviction  based  upon  circumstantial  evidence  may  be  supported  with- 
out it.    Id. 

3.  Burglary  — In  first  degree  —  Sufficiency  of  evidence.— The  evi- 

dence against  a  defendant,  indicted  for  burglary,  showed  that  the 
goods  stolen  were  of  a  bulk}'  character,  were  taken  from  a  house  in  a 
somewhat  isolated  locality,  and  were  found  soon  after  the  loss  in  de- 
fendant's possession.  Iletd,  that  the  difficulty  of  removing  such  goods 
unobservetl,  in  the  absetice  of  other  testimony,  was  entirely  insuffi- 
cient to  sustain  a  conclusion  that  they  were  taken  in  tlie  night-time ; 
and  as  the  time  of  taking  is  the  chief  distinction,  under  code  of  Iowa, 
between  burglary  in  the  first  and  second  degrees,  a  verdict  of  guilty 
in  tlie  first  degree  should  be  set  aside.  State  v.  Frahm,  132.  (See 
note,  pp.  134,  135.) 

4.  Possession  of  property  stolen  by  burglar.— Where  it  is  shown 

that  a  larceny  and  burglary  were  committed  by  the  same  person  at 
the  same  time,  and  the  goods  taken  at  the  time  of  the  burglary  are 
found  in  the  possession  of  a  person  soon  after  the  occurrence,  this  is 
prima  facie  evidence  that  he  is  guilty  of  both  offenses.    Id. 

CARRYING  CONCEALED  WEAPONS. 

Carrying  weapons  —  Search  of  person  —  Admissibility  of  evidence. 
Defendant,  being  arrested  on  a  warrant,  was  found  to  have  a  pistol 
concealed  in  his  hip-pocket.  On  the  trial  of  an  indictment  for  carry- 
ing concealed  weapons,  defendant  objected  that  the  search  of  his  per- 
son was  a  trespass,  and  the  testimony  thus  obtained  was  improper. 
Held,  that  the  objection  was  properly  overruled.  Chaatang  v.  State, 
185.    (See  note,  p.  130.) 

CHARACTER. 

1.  Character.— Respondent's  right  to  prove  good  character  in  limited  to 
pertinent  general  reputation,  and  more  ia  matter  of  favor.  State  v. 
Emory,  202. 


822' 


AMERICAN  CRIMINAL  REPORTS. 


2.  Good  chakacter  of  accused.—  In  criminal  proaecutions,  evidence  of 
the  good  clianuter  of  tlie  defendant  is  to  be  regarded  as  a  substantive 
fact,  lilte  any  other  fact  tending  to  establisli  tl>e  defendant's  innocence, 
and  ought  to  be  so  regarded  botli  by  court  and  jury.  Uanney  v.  Com., 
116  Pa.  St.,  323.     (Note,  600.) 

8.  Previous  good  character  op  accused.—  Previous  good  character  is 
not  to  be  offered  in  evidence  only  in  ca^es  vvliere  the  guilt  of  accused 
is  not  proved,  but  is  to  be  considered  as  part  of  tlie  testimony  upon 
whicli  the  fact  itself  of  guilt  or  innocence  is  to  be  found ;  and  if  from 
all  the  evidence  in  the  case,  including  that  in  relation  to  character, 
they  believe  the  defendant  guilty  beyond  a  reasonable  doubt,  previous 
good  character  would  not  authorize  an  acquittal.  State  v.  Stinger- 
land,  338. 

4.  Previous  good  character.—  Testimony  tending  to  show  the  defend- 

ant's previous  good  character  is  competent,  in  order  to  show  tiiat  it 
was  unlikely  that  such  a  person  would  commit  such  a  crime.  Hardtke 
V.  State,  577. 

5.  Character  of  accused.—  Good  character,  like  all  other  facts  in  the 

case,  should  be  considered  by  the  jury,  and  if  therefrom  a  reasonable 
doubt  is  generated  in  the  mind  of  the  jury  as  to  the  guilt  of  the  ac- 
cused it  is  their  duty  to  acquit.     Com.  v.  Leonard,  503. 

CONSPIRACY. 
See  Murder,  18. 


CONSPIRATORS. 
See  Evidence,  80. 

DEFRAUD   A   COUNTY   BY   COLLECTION    OF 
FRAUDULENT  BILLS. 


CONSPIRACY    TO 


EI?)<St'*. 


1. 


2. 


Bill  of  particulars  —  Evidence.—  Where,  upon  motion  of  a  defend- 
ant indicted  for  a  conspiracy  to  defraud  a  county  by  the  presentation 
and  collection  of  bills  alleged  to  be  fraudulent,  the  charges  being  in- 
definite and  general  in  the  indictment,  bills  of  particulars  are  ordered 
and  furnished,  showing  the  dates  and  numbers  of  bills  for  repairs  on 
a  county  building,  evidence  of  similar  bills  for  services  and  materials 
for  other  buildings  neither  mentioned  in  the  particulars  nor  connected 
with  the  bills  or  the  building  therein  referred  to  •  is  inadmissible,  as 
the  effect  of  the  particulars  is  to  narrow  the  range  of  inquiry  to  the 
transaction  therein  mentioned.  McDonald  v.  People,  137.  (See  note, 
pp.  149,  150,  131.) 

Instructions. —  Error  in  refusing  evidence  of  other  fraudulent  bills 
having  been  admitted,  it  is  error  to  refuse  to  instruct  that  the  defend- 
ant is  on  trial  only  for  the  transaction  referred  to  in  the  bill  of  particu- 
lars.   Id. 

CONSTITUTIONAL  LAW. 

Constitutional  law.— The  provisions  of  the  federal  constitution  do 
not  apply  to  prosecutions  for  criminal  oifenBes  under  state  laws,  ex- 
cept in  cases  where  the  states  are  expressly  named.  Shular  v.  State, 
50l>. 

A  statute  providing  that  a  court,  with  the  consent  of  all  the  parties, 
may  send  a  jury  to  view  the  premises  where  a  crime  was  committed, 
is  not  in  conflict  with  the  provision  of  the  constitution  conferring  upon 
an  accused  the  privilege  of  being  confronted  by  the  witnesses  against 
him.    Id. 


mm 


INDEX. 


623 


3.  Waiver  of  constitutional  privileoes.— Where  an  accuseil  asks  a 
privilfKe  givwii  l>y  statuttN  he  must  take  it  upon  the  tfriiis  iuipost'd  by 
the  statute,  and  in  denumdlng  such  a  statutory  privilege  he  waives  ail 
right  to  object  to  tiio  order  nmde  on  liis  request,  altlioui^h  such  priv- 
ileges may  be  constitutional  ones.    Id. 


See  Former  Jeopaudy,  10. 
1,  2,  3. 


Intoxicating  Liquors,  1.    Ordinance, 


CONSTRUCTION  OF  STATUTES. 

Construction  of  statittks  — Repeals  by  implication.— The  construc- 
tion of  statutes  in  respect  to  repeals  by  implication  is  that  the  earliest 
act  reinaiiiH  in  force  urdcss  the  two  are  manifestly  inconsistent  with 
and  repugnant  to  eacli  other.  It  is  necessary  to  the  implication  of  a 
repeal  that  the  object  of  the  two  statutes  be  the  same.  If  they  are 
not,  both  will  staiui,  though  they  refer  to  the  same  object.  People  v. 
Piatt.  490. 

DEPOSITIONS. 

1.  Depositions  — Failure  of  deponent  to  subscribe.— Where  the  tes- 
timony of  witnesses,  at  ii  preliminary  hearing  of  one  charged  with  a 
felony,  is  reduced  to  the  fomi  of  a  deposition,  a  failure  to  read  the 
evidence  thus  recorded  to  the  persons  giving  it,  and  get  their  signa- 
tures to  the  same,  is  a  lat.tl  defect,  and  avoids  all  subsequent  proceed- 
ings.   I'i'ople  I'.  CliiiiJiiKiii,  .'508. 

3.  Defects  —  Amendmicnt. —  A  justice  of  the  peace  wlio  fails  to  secure  the 
signature  of  witnesses  whose  testimony  has  been  reduced  to  a  deposi- 
tion has  no  power  to  amend  the  defect  three  months  after  the  deposi- 
tions were  taken.     Id. 

See  Evidence,  24. 


DYING  DECLARATIONS. 

Manslauohter  — Fe.vr  of  death.— No  set  form  of  words  should  be  re- 
quired in  a  dyin;;  declaration  to  show  that  the  declarant  was  under  u 
belief  of  speedily  ini|iending  death.  The  court  must  draw  a  rational 
conclusion  from  all  that  was  said,  taken  in  connection  with  such  sur- 
rounding circumstances  as  must  have  been  known  to  the  declarant,  as 
to  whether  the  declarant  was  in  such  a  con  lition  of  mind  as  would 
render  his  declarations  competent.  State  v.  Johnson,  360.  (See  note, 
pp.  20,  21.) 

EMBEZZLEMENT. 

1.  Embezzlement  by  attorney- at-law  —  Patsient  of  promissory  note  — 
Concealment  and  appropriation.— A  verdict  of  embezzlement  would 
be  fully  warranted  in  a  case  where  an  attorney-at-law,  acting  as  agent 
for  the  payee  of  a  note,  received  the  amount  from  the  drawee  and  used 
the  same  "for  his  own  purposes,  concealing  from  his  principal  the  fact 
of  the  payment  of  the  note.  People  v.  Treadwell,  152.  (See  note, 
pp.  163,  104.) 

8.  AOENT— Special  service  — Relations  after  termination  op  serv- 
ice and  payment  of  compensation  — Question  for  jury.— vyhena 
person  is  emploved  to  reniler  special  services  as  agent  for  another  his 
agency  ceases  with  performance  of  the  services  and  payment  of  the 
compensation  therefor  (Civil  Code,  g  2355),  unless  there  is  an  express 
understanding  between  them,  or  it  maybe  implied  from  the  circum- 
stances that  as  to  matters  growing  out  of  the  original  purpose  of  the 
agency  the  relations  between  the  parties  survived;  and  as  to  tins  ques- 
tion the  jury  is  to  decide.    Id. 


624 


AMERICAN  CRIMINAL  REPORTS. 


h  • 

V 

V 


8.  Averment  of  ownership— PROMissonv  note  iNnrmsKi).  — The  abso- 
lute indorsement  of  a  promissory  note  does  not  relieve  tlie  intlorser 
from  liability  upon  it.  He  has  still  an  interest  in  it  to  soe  that  nny 
agent  of  his  authorized  to  collect  and  pay  it  over  f)crforms  his  duly; 
and  if,  after  hia  indorsement,  the  indorsee  gives  such  inilorser  the  (jos- 
session  and  control  of  the  note  to  collect  interest  u)»on  it  forliis  bonctU, 
or  to  otherwise  control  it,  that  would  be  sulficient  to  sustain  an  aver- 
ment of  an  ownership  in  an  information  for  embezzlement.     Id. 

4.  Service  —  Agent  and  servant.— In  the  sense  of  service,  an  agent  is 

the  servant  of  his  princip.nl:  hence  designating  him  in  an  information 
or  indictment  for  embezzlement  as  agent  and  servant  in  not  such  a 
misnomer  of  his  capacity  as  affects  any  of  his  substantial  rights.    /({. 

5.  Specification  as  to  property  embezzled. —  It  is  not  necessnry  to 

specify,  in  an  information  for  embezzlement,  the  coin,  number  ur  kind 
of  money  embezzled.     Jd. 

6.  Instruction  as  to  fraudulent  intent.— Upon  a  trial  for  emhezzle- 

ment, —  that  is,  •'  the  fraudulent  appropriation  of  i)ropcrty  by  a  person 
to  whom  it  has  been  intrusted," — within  section  W-i,  Penal  Code, 
since  an  essential  element  of  the  offense  is  a  fraudulent  intent,  an  in- 
struction relating  to  what  constitutes  embezzlement,  and  another  re- 
lating to  the  question  of  fraudulent  intent  in  the  offense,  both  in 
substance  containing  the  provisions  of  sections  .")0(5  and  .WS  of  the  Penal 
Code,  were  proper  to  be  given  by  the  court  to  the  jury  for  their  infor- 
mation.    Id. 

EVIDENCE. 

1.  Evidence  —  Proof  op  handwriting.—  When  the  genuineness  of  hand- 

writing is  in  question,  it  may  be  proved  by  compiirison  with  ot\wr 
handwriting  of  the  party  sought  to  be  charged,  admitted  or  proved  to 
be  genuine;  and  such  writing  is  admissible  in  evidence,  whetlier  perti- 
nent to  the  issue  or  not,  as  a  standard  for  the  purpose  of  comparison 
with  the  handwriting  in  controversy.  State  v,  TUonqisun,  104.  (S^e 
note,  p.  170.) 

2.  Must  be  proved  or  admitted  to  be  genuine.—  Before  snch  writing 

can  be  used  as  a  standard  of  comparison,  it  must  be  proved  or  admit- 
ted to  be  the  genuine  handwriting  of  the  party  sought  to  be  chargeil, 
to  the  satisfaction  of  the  presiding  judge,  and  so  far  as  his  decision  is 
of  a  question  of  fact  it  is  final  if  there  is  proper  evidence  to  support  it. 
Id. 

3.  Experts. —  Such  standard  may  be  compi-tred  by  experts  in  the  presence 

of  the  jury,  and  they  may  express  an  opinion  founded  upon  such  com- 
parison as  to  whether  the  controverted  writing  is  genuine  or  not.    Id. 

4.  Inadmissible  evidence  vitiates  verdict. —  Where  evidence  has  been 

received  in  a  prosecution  for  felony  which  should  not  have  been  ad- 
mitted, the  verdict  of  the  jury  must  be  taken  to  have  been  founded 
upon  snch  evidence  as  well  as  upon  the  evidence  properly  admitted, 
and  if  the  prisoner  is  convicted  the  conviction  is  bad  notwithstanding 
there  was  sufJicient  evidence,  apart  from  the  evidence  improperly  re- 
ceived, to  support  the  conviction.  Reg.  v.  Gibson,  171.  (See  note, 
pp.  177,  178,  179.) 

5.  Duty  of  judge  presiding  over  criminal  court.—  It  is  the  duty  of  a 

judge  who  presides  over  a  criminal  court  to  see  that  no  improper  evi- 
dence is  given,  or,  if  such  evidence  is  inadvertently  admitted,  to  see 
that  the  verdict  of  the  jury  is  not  founded  upon  any  evidence  but  that 
which  is  legally  admissible.    Id. 

6.  Practice  —  Objection  not  taken  until  jury  retire. —  When,  there- 

fore, inadmissible  evidence  is  received,  it  is  immaterial  whether  ob- 
jection be  taken  at  the  time  the  evidence  is  given  or  after  it  has  been 
allowed  to  go  to  the  jury.    Id. 


INDEX. 


02') 


7.  EviDKATF  — Amiissioxs  — Conviction  of  acci'skd  on  —  Courrs  dk- 
U(  TI. —  VVIiiiij  a  crinu)  lias  hccii  comiiutted.  tlio  adiiiissiniis  of  a  piaty 
rliaiKcd  witli  llio  tTiiiic,  <U'lilu'iaU'lv  matlo,  mv  admis.silili-,  and  tlic 
jury  may  convict  on  hucIi  evidence  if  they  l)eliLve  it  auflicient.  .1»(- 
ilri'ifH  v.  People,  24l(. 

S.  EviPENCK —  Testimony  of  accused  — Rule  of  credibimty.— Wiion 
in  a  criminal  case  defendant  ort'eia  lumnelf  as  a  witness,  the  Jniy  is  to 
give  to  his  testimony  ail  tiie  credft  to  wiiicii  it  is  entitled;  luit,  w 
hearing  upon  the  (juestion  of  cn-dibility  in  tiiis  connection,  the  jniy 
must  consider  liie  situation  of  defendant.     Shitc  r.  Slinijcrl'intl,'4ydH. 

'.).  Declarations  of  deck ased.— Upon  trie  trial  of  a  respondent  under  an 
iiil'orination  charKiriK  criminal  ahortion,  declarations,  made  by  the 
deceased  n'\v\,  of  what  the  respondent  had  saitl  or  done  a  day  or  two 
before  she  made  the  declarntions,  are  purely  hearsay,  and  will  not  be 
aiimitled.     People,  t;  Ailceii,  845. 

10,  Experts  — IIvi'OTiiETK 'A L  questions- Mode  of  ruofouNDiNo.— Upon 

a  trial  for  abortion,  counsel,  in  putting;  hypothetical  i|uesiions  to  ex- 
l)ert  medical  witnesses,  will  not  be  allowt'd  to  ask  their  opinions  as 
to  the  tesiimonyof  other  witnesses,  witlxjut  statinj;  to  tlie  former 
the  pari;(;nlar  points  of  the  evidence  of  the  latter.  Id,  (See  note, 
pp.  !{((-l.  ;!•)."».) 

11.  CiRcuMSTANriAL  EVIDENCE  —  QUANTUM  OF  PROOF.— In  a  ease  ill  whieli 

the  prosecMlor  s()ii;;lit  to  convict  the  defendant  upon  evidence  that  was 
purely  ciiiamislaiitiai,  the  trial  court  should  instruct  tiic;  Jury  to  the 
elfei't  that  each  necessary  link  in  the  testimony,  and  ever^'  material 
and  necessaiy  fact  upon  which  a  conviction  tlepeiids,  must  be  proven 
beyond  a  ri'asonahle  doubt,  and  that,  if  any  ot  the  facts  or  circum- 
stances establishtMl  be  absolutely  inconsistent  with  the  hypothesis  of 
guilt,  that  hypothesis  cannot  be  true.     Id. 

1',».  Evidence  —  Tiieokv  of  suicide.—  Where  there  are  some  circumstances 
which  suj;f^cst  that  a  person  charged  to  liave  been  murdered  com- 
mitted suicide,  it  is  com|)etent  for  the  ja'osecution,  for  the  |)urpose  of 
repelling  the  theory  of  sni<'ide,  to  show  by  an  ordinary  witnes-i  who 
was  intimate  with  the  deceased,  and  was  witii  her  the  evening  before 
her  death,  that  she  was  then  in  good  si>irits  and  appeared  tt)  be  happy. 
State  V.  liiUdKHii,  ;JTT. 

r.5.  Opinion  —  Facts  made  up  of  comiunation  of  appearances  —  Facts 
which  are  made  up  of  a  great  variety  of  circumstances  and  a  coinbina' 
tion  of  apipcarances.  that  cannot  be  fully  descrioed.  may  he  shown  by 
the  opinion  of  orilinarv  witnesses,  whose  observation  i/> :  ucli  as  to  jus- 
tify it.     Id. 

14.  Demeanor  of  pijisoneij. —  The  ilemeanor  of  one  charged  with  crime, 

at  or  near  the  time  of  its  commission,  or  of  his  arrest  for  the  same, 
may  always  be  shown;  and   the  testimony  Of  the  officer  who  suh- 
pcenaed  and  took  the  ilefendant  before  the  coroner's  jury,  that  "  he 
was  very  nervous  aud  showed  a  great  deal  of  fear."  was  .idmissible.  . 
Id. 

15.  Experts — Woodwoiskeus. —  A  panel  had  been  cut  and  taken  f  rom  s 

the  outside  door  of  the  house  where  the  offense  was  committed  ;  and 
when  the  defendant,  who  was  a  carpenter,  was  ani'stetl,  a  knife  was 
found  on  his  person.  Witnesses  who  are  skilled  workers  in  wood  inaj- 
bo  called  to  show  that  in  their  opinion  the  panel  had  be(>n  cut  out  with 
a  knife;  that  the  blade  of  defendant's  knife  exactly  litted  the  place 
where  the  panel  had  been  pierced:  that  it  had  been  cut  from  the  out- 
side by  one  skilled  in  the  use  of  tools,  and  was  evidently  tiiken  out  by 
one  who  un<lerstood  the  construction  of  a  door.     Id. 

1(5.  Scientific  hooks  — Experts.— Medical  and  scientific  iiooks  caimot  be 
admitted  in  evidence  to  i)rove  the  declaration  or  opinions  which  they 

Vol.  VII  — 40 


020  AMERICAN  CRIMINAL  REPORTS. 

contnin;  but  a  witne=,H  who  is  a  nicfHcnl  oxpcit  ih  not  confined  wholly 
to  Ilia  personnl  oxperienco  in  the  treatment  of  men,  but  may  give  ills 
opinioiiH  formed,  in  part,  from  tlio  reading  of  bool<H  prepared  liy  pt>r- 
sons  of  acknowledged  ability.    Id. 

17.  Witness  —  Cross-examination  —  Prfa'Iouh  statemfat.— Where  the 

defendant  produced  a  witness  who,  witli  a  view  of  riliowiiiK  tlie  con- 
scious innocence  of  the  defendant,  testifleil  wliat  his  conduct  luid  ap- 
pearance was  soon  after  the  death  of  liis  sister,  it  was  proper  to  intpiirc. 
on  cross-examination,  if  the  witness  liad  not  sliited  at  tlie  prciiniiiiaiy 
examination  tliat  the  conduct  of  the  defeiuhint  impressed  him  at  once 
as  being  guilty  of  the  murder.     Id. 

18.  Memorandum  —  iNDErENDENT  REfou.KrTinN.— a  witness  maybe  jier- 

niitted  to  refresli  his  memory  from  a  writing;  or  niemoraiidnm  mad  ■ 
by  himself  shortly  after  the  occurrence  of  the  fact  to  whicii  it  relatis. 
Id. 

10.  When  two  crimes  are  committed  both  may  be  buoved  — Tiie  ap- 
pellant wjis  charged  with  the  murder  of  a  citizen,  imt  an  (illicer,  who 
was  pursnin;;  him.  Tcslimony  was  adduced  leiiiliii;;  to  prove  tlia' 
the  accused  was  a  member  of  a  ix'-wj^  of  pielipockets  who  were  phr.i- 
deriii}?  citizens  asseinbled  at  a  political  meet  in;;;  ami  il  was  lield  com- 
petent to  prove  that  p(jck<^ts  were  jiicked  by  the  j^aiiK  of  which  the 
accused  was  a  member.     Kcnncdif  v.  Stutc.  r.'-,'. 


20. 


21. 


23. 


24. 


[f 


the 
ae|> 

llu'iaiice  of  the  com- 
W'illliniiti  r.  Stall'. 


evidence  pviiiin 
and  declaration-- 


Acts  and  declarations  ok  coxsi'ihat(iI!s. 
fdvU'  establishes  a  combination  or  conspiracy ,  lltt 
of  each  of  the  confederates  done  or  inaile  in   liii 
nion  (iesi^;n  are  the  acts  and  declarations  ot   al 
44!}.     (See  note,  p.  4.')'i.) 

Joint  indictment-- Evidence.— Upon  the  tri.al  of  several  defendant-^ 
jointly  indicted  i'or  inurder,  the  statement  of  the  one  who  shot  de- 
ceased, in  the  j)reseiice  of  the  ollieis.  thai  they  .not  liim  to  do  it,  is 
admissible  as  evidence  against  all.     Id. 

Evidence  admissible  against  some  —  iNsritfi  rB)N.—  Upon  such  trial, 
evidence  t'ompeteiit  aj;ainst  some  delendant-..  but  not  a'^ainst  others, 
cannot  be  excluded:  but  the  rights  of  tlie  iatt.i-  are  protected  by  an 
instruction  limiting  its  ctfect.     Id. 

Evidence  —  Exclamations  of  bv-standkiis.—  The  exclamations  of  by- 
standers on  the  spot  where  a  murder  has  lieen  eonimitted,  givinij;  ex- 
j)ressions  to  the  opinion  that  the  derenilant  oiit;lit  to  lie  hnng,  are 
clearly  hearsay  and  not  admissible  in  evideiu-e.     kurliii  r.  Com.,  i'l'i. 

Deposition  —  Commissions  —  I'owr.u  (ti--  ((HitT  to  issik.— There  is  no 
inherent  i)Ower  in  a  comnisii-law  conrl  to  issue  comniishions  to  take 
dejiositions  to  be  read  in  Ixdialf  of  litiKaiils  in  a  civil  or  criminal  case; 
the  ri<;ht  to  take  and  use  depositions  of  witnesses  in  liehalf  of  the  de- 
fendant ill  a  criminal  case  is  statutory,  and  does  not  exist  in  cases  not 
proviilcd  ly  the  le^;islatiire.     Id. 

Evidence  — Declaration  of  acccsed.— Shortly  after  defendant  shot 
deceased  he  made  a  false  statement  to  certain  ))ersons  about  the  shoot- 
ing, wliicli  was  given  in  evidence  liy  the  stale.  Jli'lil,  that  under  Code 
of  Criminal  Procedure  of  Texas,  article  741,  providing  "when  a  de- 
tailed .  .  .  conversation  is  given  in  evidence,  any  other  declara- 
tion .  .  .  necessary  to  make  it  uiidei>i(K>d,  or  explain  the  same. 
may  also  be  given  in  evidence,"'  defendant  was  (.'iititled  to  show  that 
later  on  the  same  evening  he  made  a  diU'ereiit  statement  to  his  brother, 
and  explained  to  him  the  reasons  for  making  the  former  statement. 
BoiDKird  V.  State,  462. 

Evidence  —  Expert  witnesses  —  Post-moi:  ri;M  exajiination  ex  parte. 
Tlie  court  did  not  err  in  iidniitting  experts  to  ti^dily  to  the  condition 
in  which  a  body  was  founil  on  a  secoiul  i)OHt-mortem  examination. 


INDEX. 


027 


oi^lit  (In.VH  nftor  tl>c  first  wnn  tumlc.  tliniiKli  tlio  Borond  oxnniinntini 
was  nindc  witlioiit  notico  to  the  oppoHinj;  party.    .S7(//('  r.  Lfdho,  ."t;!;!. 

87.  CnAH(JiNa  dkfksijant  with  acts  of  a  thiud  pkuson  witiidlt  siiowino 
PHIVITY.— It  Ih  error  to  allow  tlio  prosi'iiitrix  to  tiHtify  what  «mi'  M. 
told  iicr  to  sny  nlxnit  tlu'  injury,  wlion  dofcnrlnnt  was  not  pnscnt,  and 
was  not  nliown  to  liavo  known  anything  about  it;  it  la-iuK  tiicrt-liy  as- 
Buiut'd  without  evidence  that  M.  was  acting  for  defendant.  lliiiuUhe 
V.  State,  577. 

28.  Leading  QUESTIONS.— The  (inoHtion  asked  the  prosecutrix.  "Was  there 

any  l)looil  on  your  underc.otJiing  utter  this?"  is  u  leading  (luestion, 
and  its  allowance  is  error.     Jd. 

29.  STENOdUArHEU  NOT  SWORN  —  t'EnTti'UATE.—  A  Stenographer  appointed 

in  a  criminal  action,  under  the  authority  of  Penal  Coile  of  California, 
section  8G9,  bv  tlie  nniKiMtrate  before  whom  the  examination  is  liad, 
to  take  depositions,  need  not  lie  sworn  to  faithfully  perform  his  duty, 
nor  need  tlie  fact  tliat  he  was  sworn  appear  in  the  (ieposiiion-^,  and  a 
certificate  tliat  the  "  foregoing  is  a  correct  transcript  of  tiie  examina- 
tion ill  the  abovc-enlitled  case"  is  sullicieiit  upon  which  to  admit  a 
deposition  in  evidence.     I'coide  v.  Ril('H,  000. 

30.  When  may  he  reap  —  Witness  ausent  erom  state.— Penal  Code  of 

California,  section  I'M'),  provides  tliat  a  deposition  may  be  rca<l  in  evi- 
dence on  the  trial  of  an  iiidictniciit  upon  its  appearing  that  the  wit- 
nc^s  is  unable  to  attend  by  reason  of  ilcatli,  insanity,  sickness  or 
iiilirniitv  or  continued  absence  from  the  state,  and  the  court,  upon 
proper  showing  being  made,  is  jiistilieil  in  tinding  that  the  witness 
<'ould  not,  with  due  diligence,  be  found  within  the  state.     Id. 

31.  (jRoiNi)  OK  oiUECTIoN  TO  gi'ESTloNS.— Pciuil  Code  of  California,  sec- 

tion S('i!»,  siibilivision  ;>.  jirovides  that  in  taking  depositions  to  b(,>  used 
in  a  criminal  action,  if  a  (|Uestion  pet  be  objected  to.  and  overruled, 
that  lad.  with  the  ;;i'ound  on  which  the  (piestion  was  oveiinlcd.  must 
be  stated.  7/(7'/,  that  the  groiiiul  of  ob.jection  is  siillicieiitly  shown 
it  it  appear  tliat  the  (juestion  was  overruled  as  being  "  ininiaterial  and 
irrelevant."'    I(t. 

82.  EvinEXf'E  or  identity  of  peuson.- On  the  trial  of  an  indictment  a 
deposition  was  read  in  evidence  in  which  the  defendant  was  referred 
to  by  name,  without  furtlier  description.  The  court  charged  the  jury 
that  "identity  of  person  is  presumed  from  identity  of  naiiii^"  llcld 
that,  as  no  evidence  was  introduced  to  overcome  the  pre.-uimption.  the 
giving  of  the  instruction  was  error  without  prejudice.    Id. 

Sei.' Abduction,  3.   Ahandonmknt,  2,  3.  Accomplice,  4,  ">.  Preakincj 
AND  Entering,  etc.,  4.    liRiiiKKY.  o     Huuoeary,  2,  3.    Forgery,  4. 


FALSE  PRETENSE  AND  PP05IISE. 

1.  Exceptions  uy,  may  he  reviewed. —  For  error  in  qu.nshing  an  indict- 

ment, arresting  judgment  after  verdict  of  guilty,  and  tlie  like,  the 
commonwealth  may  remove  the  record  from  the  court  below  to  the 
8Ui>ieine  court  for  review  without  special  allowance  of  the  proper  writ. 
Commonwealth  v.  Wallace,  170. 

2.  Quashing  indictment  —  Writ  of  error  —  Certiorari.— A  writ  of 

error  is  the  jirojier  writ  to  bring  belore  the  supreme  court  for  review 
alleged  error  in  (juasliing  a  bill  of  indictment;  but,  if  u  writ,  of  artio- 
rari  \w  taken  and  the  case  heard  on  its  merits,  the  writ  will  not  be 
quashed  for  that  reason.     Id. 

3.  False  pretenses  —  Indictment  —  What  constitutes.—  A  bill  of  in- 

dictment charged  that  defendant  did  iiretend  "that  the  assets  of  said 
People's  Savings  Bank  were  largely  in  excess  of  its  debts  and  liabilities, 
anil  that  said  bank  was  pLriettly  solvent  and  able  to  pay  its  debts  and 


§ 


628 


AMERICAN  CRIMINAL   KEPORTS. 


liabilities."  followed  by  the  avriinent  that  "  in  truth  and  in  fnrt  the 
assets,  at  the  time  of  makinR  the  representation  aforesaid,  were  not  in 
excess  of  its  debts  and  liabilities,  and  said  People's  Savinyis  Bank  was 
not  solvent  and  able  to  pay  all  its  debts  and  liabilities."  Held,  that 
this  was  a  false  pretense  within  the  statute.    Id. 

4.  False  pretense  and  promise  made  tocjEther. —  When  a  pretense  and 

promise  are  made  together,  and  both  ojierato  in  the  inducement,  the 
case  is  within  the  statute,  if  the  pretense  of  a  false  existing  or  past  fact 
be  sufficient.     Id.    (See  note,  p.  183.) 

5.  Persons  cheated  —  Voluntary  association. —  An  indictment  under 

Revised  Statutes  of  Missouri  of  1879,  section  1501,  for  cheating,  whicli 
sets  out  that  the  defendant  attempted  to  cheat  certain  "  i)ersons.  firms 
and  corporations,  composing  a  voluntary  association  known  as  tlu! 
'  Brewers'  Association  of  St.  Louis  and  East  St.  Louis,'  a  more  particu- 
hir  description  of  which  said  persons,  firms  and  corjjorations,  and  of 
said  associ.ition,  is  to  the  jurors  unknown,"  etc.,  is  bad,  because  it  does 
not  sufficiently  set  forth  the  names  of  the  persons  who  were  to  be 
cheated.     Utote  v.  McChemiey,  184. 

6.  Desv^ription  of  the  trick  or  device.—  An  indictment  for  attemi)tod 

cheating,  which  charges  that  the  accused,  at  a  certain  time  and  place, 
"did.  with  intent,"  etc.,  "  to  feloniously  cheat  and  dofriiiul,  unlaw- 
fully," etc.,  "  attempt  to  obtain  from  ctTliiiii  persons,"  etc.,  "  by  nieans 
and  by  use  of  a  certain  trick  anil  deception,  and  by  means  anil  by  use 
of  certain  false  and  fraudulent  representations,"  etc.,  "  a  large  sum  of 
money,"  etc.,  is  bad,  because  it  does  not  sufficiently  set  forth  the  trick 
or  device  of  which  the  defendant  made  use.     Id. 

See  E'iDNAPiiiG.    Larceny,  6. 


FORGERY. 


^lj"-rf'r-i^f 


1.  FoRGEilY  —  Indictment  —  Name  of  deceased  person.— Whore  a  for- 

gery is  committed  after  the  death  of  llio  man  whose  name  purports  to 
be  signed  to  the  instrument,  it  is  proper  to  cliarge  that  the  iiiiL'Mt  w:im 
to  defraud  his  estate,  as  the  estate  of  adeceilent  is  in  law  regarded  as 
a  person.     Billinga  v.  State,  188. 

2.  Indictment  —  Variance.— An  indictment  which  chnrgos  the  defendant 

with  loiging  an  instrument  purjtorting  to  be  signed  Ijy  A.,  and  sutsoui 
an  instrument  purporting  to  be  signed  by  U.,  is  liad,  on  (knniner,  U.: 
repugnancy.    Stute  v.  Ilornii,  Ull. 

3.  Descriition  of  instrument.— Under  General  Lawsof  Now  Ilainiisliiic. 

chapter  !i7(i.  section  1,  making  it  a  crime  to  connti'rl'eit  any  warrant, 
order  or  ri'(]uest  for  the  payment  of  money,  or  the  delivery  of  any 
property  or  writing  of  value,  an  in<lictm('Mt  lor  forging  an  appliration 
for  an  insurance  policy  is  bad  which  docs  not  aver  in  the  language  oi 
the  statute  that  tlie  policy  was  a  writing  of  value.     Id. 

4.  Evidence  —  Other  transactions.— On  indictment  in  (il'ty-four  counts 

iov  forging  and  utti'iing  certain  receipted  l)ills  for  merchandise.  ar;;u- 
nient  on  ilcfcndaiifs  motion  to  (juasli  was,  by  his  consi'nt.  ild'crrcd 
until  the  close  of  the  government's  case,  when  it  was  called  up,  and 
all  but  six  of  the  counts  were  (plashed  by  consent  of  the  govcrnmi'iit 
attorney.  Defendant  then  asked  the  court  to  strike  out  certain  evi- 
dence wddch  had  been  introijiced  under  the  ofhir  couids  lending  to 
show  that  he  had  fabricated  i  ortain  other  uiu'eccipted  bills  of  a  like 
character,  and  uttered  them  to  tli';  same  parties  by  a  continuous  scries 
of  transactions  extending  some  m mths  later  than  the  latest  forgery 
alleged  in  said  six  counts.  Ihld.  that  the  evidence  in  (picstion  was 
adnnssible  under  the  saiil  six  counts  as  forming  a  part  of  a  single 
scheme  of  fraud  and  as  tentling  to  prove  knowledge.  Coininonwealth 
V.  White,  lUa.    (See  note,  pp.  11)8,  199.) 


INDEX. 


C29 


5.  Indictments  —  Requisites. —  On  indictment  fur  forging  and  uttering 

a  receipted  bill  for  goods,  held,  that  the  instrument  being  set  out,  and 
Ijurijorting  on  its  face  to  be  the  thing  prohibited  by  statute  to  be 
forged,  there  was  no  need  of  further  allegations  to  show  how  it  was 
that  tiling,  or  how  it  could  he  used  as  an  instrument  of  fraud,  or  that 
it  was  so  used  in  fact.    Id, 

FORMER  JEOPARDY. 

1.  Former  jeopardy— Discharge  of  jury  at  end  of  term.— The  dis- 

charge of  a  jury  in  a  capital  case  on  the  last  day  of  tlie  term,  after 
they  have  for  five  days  failed  to  agree  upon  a  verdict,  is  not  because 
of  an  absolute  necessity,  in  the  absence  of  any  reason  why  the  term 
could  not  be  continued,  and,  if  made  against  the  objection  of  the  de- 
fendant, is  a  bar  to  another  trial  for  the  same  oifense.  Commonwealth 
V.  Fitzpatrick,  199.    (See  note,  p.  202.) 

2.  Plea  in  abatement  — Certainty.— A  plea  in  abatement  must  be  cer- 

tain to  every  intent,  and  stand  on  its  own  allegations,  unless  express 
reference  is  made  to  the  indictment,  titate  v.  Emery,  202.  (See  note, 
pp.  207,  208.) 

3.  DuPUCiTY  —  General  demurrer.— Duplicity  in  a  plea  in  abatement 

is  reacheil  by  general  denmrrer.     Id, 

4.  Once  in  jeopardy. —  During  the  trial  one  of  the  jurors  was  taken  sick, 

and  liie  panel  thereupon  dkschurged.  Held,  that  the  prisoner  had  not 
been  in  jeopardy.     Id, 

').  Informal  verdict  —  Court  may  set  aside.— Trial  courts  have  the 
jiovver  to  reject  an  inl'ornial  or  illegal  verdict,  and  sucii  a  vertlict  can- 
not operate  to  acipiit  unless  the  jury's  intention  to  accjuit  is  apparent. 
Likewise,  inlornial  verdicts  nuiy  be  amended  under  the  direction  of 
the  court.    liobiunuu  v,  titate,  208. 

6.  New  trial  —  Effect. —  The  award  of  a  new  trial  because  of  an  in- 

formal or  illegal  verdict  places  the  case  in  the  same  condition  as  if  no 
trial  had  been  had.     Id. 

7.  Practice  —  Former  jp^opauDY. —  Neither  jeopardy  nor  former  ac(iuit- 

tal  are  such  i)leas  as  can  be  interposed  by  an  accused  at  a  subsequent 
trial,  upon  his  showing  that  his  conviction  on  his  former  trial  was  set 
aside  because  of  an  illegal  verdict.     /(/. 

8.  The  failure  of  the  jury  to  pass  upon  the  pleas  of  jeopardy  and  former 

actpiiltal,  in  the  absence  of  any  supporting  proof,  cannot  operate  to 
the  prejudice  of  the  accused,  and  therefore  becomes  immaterial.     Id. 

'.}.  New  trial  at  request  of  accused.—  Where  a  new  trial  is  granted 
to  one  who  has  betii  convicted  of  manslaugiiter  under  an  indictment 
for  murder,  he  is  in  the  same  position  as  if  no  trial  had  been  had,  and 
may  be  again  tried  for  murder.     Vommoniceulth  v.  Arnold,  210. 

10.  Constitutional  law. —  The  legislature  has  the  right  to  prescribe  the 
ternirt  U|)on  which  one  who  has  been  convicted  of  crime  may  have  a 
new  trial;  therefore,  section  270  of  the  Criminal  Code,  which  provides 
that  '•  the  granting  of  a  new  trial  places  the  parties  in  the  same  posi- 
tion as  if  no  trial  had  been  had,"  is  not  unconstitutional.     Id. 

See  Larceny,  1. 


FUGITIVE  FROM  JUSTICE. 

1.  Sufficiency  of  warrant  — E.xtradition.— A  warrant  issued  by  the 
stale  exi'ciitivc  for  the  apprehension  and  extradition  of  fugitives  from 
justice  is  siiHicieiit  when  it  recites,  witlniiu  setting  out  in  full,  the  af- 
.■^davit  on  which  it  is  based.    Ex  imrle  i^tanley,  213,    (See  note,  p.  217.) 


630 


AMERICAN  CRIMINAL  REPORTS. 


2.  Recitals  in  warrants  —  Certified  copy  op  affidavit.— The retital 

in  an  extradition  warrant  that  the  demam'  for  the  arrest  of  the  fugi- 
tive was  accompanied  by  a  copy  of  the  afHdavit  on  which  it  was  bastil, 
"duly  certified  as  authentic,"  is  equivalent  to  a  recital  that  the  copv 
was  ■'  certified  t's  authentic  by  the  governor"  of  the  state  who  in  . 
the  demand,  as  it  could  not  have  been  duly  certified  by  any  ollh  i 
thority.     Id. 

3.  Validity  op  w^.rr ant— Alleging  commission  of  crime.— It  is  not 

essential  to  the  validity  of  an  extradition  warrant  that  it  shoiud  show 
tl4at  the  crime  with  which  the  fugitives  are  charged  in  the  indict- 
ment, recited  in  the  demand,  is  a  crime  by  the  law  of  the  demanding 
state.     Id, 

GAMBLING. 

1.  Indictment  —  Form.— Under  Public  Statutes  of  Rhode  Island,  chapter 

246,  section  5,  defendant  was  indicted  for  keeping  a  gambling  i)lace. 
A  charge  in  the  indictment  that  on  July  4th  the  defendant  kejjt  a 
room,  and  sntfered  it  to  be  kept,  for  gambling,  held  to  mean  that  he 
kept,  and  suffered  it  to  be  ke[)t,  for  gambling,  on  the  d."y  alleged,  and 
the  words  "then  and  there"  were  unnecessary.  Slate  v.  Marchunt, 
217.    (See  note,  pp.  219,  3:20.) 

2.  Temporary  control  of  place.— Evidence  showed  that  one  S.  was 

lessee  and  keeper  of  the  room  mentioned  in  the  iiidictnient,  and  that 
on  the  day  mentioned  he  went  out,  and  left  it  temporarily  in  charge 
of  the  defendant.  Held,  if  the  defendant  was  in  charge  and  control 
of  tlie  room,  for  the  purpose,  on  liis  part,  of  its  being  used  as  a  gam- 
bling-room, it  was  enough,  even  though  the  room  was  not  actually  s" 
used  while  he  was  iu  charge  of  it.     Id. 


GRAND  JURY. 

1.  Plea  in  abatement  to  drawing  op  grand  .jury  —  Requisites.—  It  is 

the  duty,  not  of  the  cit)'  council  of  Newport,  Rhode  IslaiiU,  but  of  the 
board  of  aldermen  of  saiil  city,  to  draw  the  grand  jurors  recjuired  of 
it;  and  a  plea  in  abatement  to  an  indictment  "  that  one  of  the  grand 
jurors  was  not  drawn  by  the  town  council,  nor  by  the  city  council  of 
Newport,"  is  bad  ui)on  demurrer,  because  it  does  not  negative  the 
IWHsibiliiti  that  he  loas  legally  drawn.     State  v.  Diigyan,  220. 

2.  To  competency  of  grand  jury.  —  A  plea  in  abatement  to  an  indict- 

ment that  one  of  the  grand  jurors  was  not  "  (pialilied  to  vote  upon  any 
proposition  to  impose  a  tax,  or  for  the  expenditure  of  mont-y "'  (the 
words  of  Pub.  St.  R.  I.,  ch.  200,  g  1),  is  a  bad  plea,  as  too  general.    /(/, 

3.  Not  favored. —  Pleas  in  abatement  for  niere  defects  in  the  constitution 

of  the  grand  jurj'  are  generally  interijosed  for  tlelay,  and  are  not  fa- 
vored, and  application  to  amend  should  be  refused.     Id. 

4.  Divulging  proceedings  before  grand  jury  — Namf;s  of  witnesses 

on  indictment. —  A  gr.ind  juror  sununoned  as  a  witness  upon  the 
hearing  of  a  motion  to  set  aside  an  mdictment  on  the  ground  that  the 
names  of  all  the  witnesses  examined  before  the  grand  jury  have  not 
bt^en  inserted  or  indorsed  thereon  cannot  refuse  to  testify  as  to  what 
witnesses  were  examined  before  the  grand  jury.  Ux  parte  Schmidt, 
224. 

HABEAS  CORPUS. 

1.  Bail  in  murder  case  after  disagreement  of  jury.  — The  fact  that  a 
single  trial  of  an  accused  for  murder  resulted  in  the  disagreement  of 
the  jury  will  not  autliorize  thi;  refusal  of  bail.  But  the  failure  of  the 
proof  to  establish  satislac  torily  the  killing  upon  exjaesB  malice  enti- 
tles the  applicant  to  bail.     A.c  parte  Enytaitd,  225. 


INDEX. 


C31 


2.  Habeas  cohpus  to  detkrmine  right  to  custody  of  infant.— An  ad- 

judication on  the  (juestion  of  the  right  to  the  custody  of  nw  infant 
child,  brouglit  upon  a  writ  of  habeas  covpus,  may  be  pleaded  as  "  trs 
adjudicata,"  and  is  conclusive  upon  the  same  parties  in  all  future  con- 
troversies relating  to  the  same  matter,  and  upon  the  same  state  of 
facts.  Such  a  case,  which  is  one  of  private  parties  contesting  private 
rights  under  the  form  of  proceedings  on  liuhcas  corpus,  distinguished 
from  one  where  the  writ  is  sued  out  by  or  on  behalf  of  a  prisoner,  or 
one  restrained  of  his  liberty.  State  ex  ret.  Lemhke  v.  Buchtel,  221.  (See 
note,  p.  228.) 

3.  Power  over  writs  —  Amending  return.— The  judicial  officer,  ujmn 

a  return  to  a  writ  of  habeas  coipiis,  may  compel  the  return  of  any 
warrant,  order  or  document  which  he  has  reason  to  think  exists,  and 
may  amend  the  return  to  such  writ  at  any  time  before  rendering  his 
decision.     Puttvrsun  v.  State,  229.    (See  note,  p.  237.) 

4.  Cause  of  detention.— A  return  of  facts  which  shows  a  cause  for  de- 

tention will  be  sufficient,  if  their  truth  or  sutftciency  are  not  ques- 
tioned by  the  prisoner  at  the  hearing.     Id. 

5.  Courts— Oyer  and  terminer.— A  justice  of  the  supreme  court,  sit- 

ting with  a  judge  of  the  court  of  common  pleas,  constitutes  a  court  of 
oyer  and  terminer,  although  there  is  a  vacancy  in  the  number  of  com- 
mon pleas  judges  in  the  county.     Id. 

6.  Time  of  trial. —  A  defendant  should  not  be  discharged  on  habeas  cor- 

2)Hs  because  he  has  not  been  tried  the  second  term  after  issue  joined, 
under  the  provisions  of  section  G5  of  the  act  concerning  criminal  pro- 
ceedings, unless  it  appears,  Jirst,  that  he  has  applied  to  the  trial  court 
and  has  been  refused  his  discharge;  and  secoiuUij,  tb.at  such  refusal 
was  so  arbitrary  and  groundless  as  to  amount  to  a  clear  abuse  of  dis- 
cretion.    Id. 

HABITUAL  .CRIMINALS. 

1.  Intoxicating    li9uoi{s  —  Limitation  as   to    former   conviction.— 

Under  Oeneral  Laws  of  New  Hampshire,  chapter  lOt).  section  3(5,  pro- 
viding that  no  indictment  shall  be  found  for  any  offense  under  said 
chapter,  which  relates  to  the  sale  of  si)irituous  liquors,  unless  com- 
mitted witiiin  a  year,  a  former  conviction,  charged  in  an  indictment 
for  the  purpose  of  increasing  the  punishment  on  conviction,  need  not 
have  been  luul  within  the  year.    State  v.  Adams,  237. 

2.  Indictment  —  Sufficient  allegation  of  former  conviction.—  Under 

Bill  of  Rights  of  New  Hampshire,  article  15,  requiring  olfenses  charged 
to  be  fully  and  plaiidy.  substantially  and  formally  described  to  the 
accused;  and  (leiuTalLaws,  chapter  lOi),  section  23,  ])rovidJng  that  a 
complaint  or  indictment  for  a  subsequent  offense  under  that  chapter 
need  not  particularly  set  forth  the  record  of  a  former  conviction,  but 
only  allege  briefly  that  the  accused  has  been  convicted  of  some  viola- 
tion of  said  chapter,—  it  is  enough  to  set  out  the  court,  time,  offense 
and  fact  of  conviction  on  a  plea  of  guilty.     Id. 

HAWKERS  AND  PEDDLERS. 

Hawkers  AND  peddlers  —  Selling  without  license  — Evidence.— On 
the  trial  of  an  indictment  for  carrying  on,  without  a  license,  the  busi-. 
ness  of  a  transient  or  itinerant  dealer  of  goods,  evitlence  of  sales  made 
in  other  counties  than  that  named  in  the  indictment  is  admissible  for 
the  purpose  of  showing  the  itinerant  nature  of  the  business.  Skiff  v. 
State,  240.    (See  note,  p.  243.) 


INDICTMENT. 

1.  Indictment—  Misjoinder-  Motion  to  i^u ash  — Election.—  A  motion 
t!>i^"  i  sh  an  indictment  for  misjoinder  is  addressed  largely  to  the  sound 


632 


AMERICAN  CRIMINAL  REPORTS. 


.'.I  4' 


discretion  of  the  trial  court;  and,  where  it  does  not  clemTy  appear  on 
tlie  face  of  the  indictment  that  different  and  distinct  crimes  which 
cannot  be  joined  are  charged  in  differi'ii*  counts,  tiie  action  of  tlie  trial 
court  in  refusing  to  quash  tlie  indictment  for  misjoinder,  or  to  compel 
an  election  by  the  prosecutor,  will  be  suatained  on  appeal.  Glover  v. 
State,  113. 

3.  Amendment  of  indictment  —  Misnomer.—  Under  code  of  Alabaniii  ol 
1886,  section  4389,  providing  that  an  indictment  may  be  aiiiemlcil 
*'  with  the  consent  of  the  defe;  idant,  when  the  name  of  the  defeiiduiit 
is  incorrectly  stated,"  it  is  revc  .-siblo  error  to  allow  an  indictment  to  In- 
amended  so  as  to  con-ect  a  misnomer  set  up  by  the  defendant's  pIcM 
in  abatement,  where  the  record  dt)es  not  show  allinuiitively  that  de- 
fendant consented  to  the  amendment.  Sliiff  i;.  Slate,  240.  (See  note. 
p.  343.) 

3.  Indictment  —  Person  unknown  — Variance.— The  indictment  upon 

whicii  defendant  was  convicted  for  fraudulently  disjiosing  of  mort- 
gaged property  —  a  horse  —  alleged  that  the  sale  was  to  a  i)erson  un- 
known to  the  grand  jury.  The  evidence  showed  that  he  was  either 
known  or  could  have  been  known  by  the  exercise  of  slight  dili^eiicc. 
Held  that,  as  the  allegation  was  not  sustained  l»y  the  jjioof,  the  con- 
viction could  not  be  supported.  PresU'ij  v.  Slate,  2i'd.  (See  note, 
pp.  344,  245.) 

4.  Indictment  — Second  KETCKN  — Duty  TO  examine  witnesses.-- A  bill 

of  indictment  was  sent  to  the  grand  jury,  and  upon  examination  ol 
witnesses  it  was  returned  "a  true  bill."  Tlie  solicitor  lor  the  state 
concluding  it  did  not  charge  the  indictment  inteiideii,  it  was  (piaslied. 
whereupon  another  bill  was  sent  to  the  grand  jury,  whicli  was  re- 
turned a  "  true  bill,"  without  any  further  examination  of  witnesses. 
Held,  that  it  should  be  (juashed.    State  v.  leey,  245. 

5.  In  such  a  case  the  second  cannot  be  taken  as  an  additional  count  of  the 

first  indictment.     Id. 

6.  Indictment  —  Witnesses  indorsed  on.— The  retjuirement  of  the  stat- 

ute that  the  foreman  of  the  grand  jury  shall  indorse  ii|>on  the  back 
of  an  indictment  the  names  of  the  witnesses  upon  whose  testimony 
the  indictment  is  found  is  mandatory,  and  a  disregard  thereof  would 
be  fatal  to  the  indictment.  The  indictment,  in  this  c.ise,  was  imlorsed 
with  the  names  of  live  witnesses,  below  which  appeared  the  recital : 
•'  For  other  witnesses,  see  Olf.  Palmer."  This  indorsement  is  held 
Butficient  and  the  recital  harmless.    Andrews  v.  People,  24!). 

7.  Indict.ment-  Several  counts  —  When  election  REyuiui:!).  — Where 

two  or  more  offenses  are  charged  in  several  counts,  joineil  in  one  in- 
dictment, and  such  offenses  may  be  parts  of  one  and  the  same  frans- 
action,  and  of  such  a  nature  that  thedi'leiidant  may  be  guilty  of  both, 
the  prosecution  will  not  be  required  to  elect  oi;  winch  count  they  will 
j)roceed.  Election  will  be  required  oidy  where  distinct  offenses,  not 
))arts  of  the  same  transaction,  are  involved.  Id.  (See  note,  pp.  253, 
254.) 

8.  Statutory   crimes  —  Indictment. — When   a   statute,  in   defining  a 

crime,  refers  by  name  to  another  well-known  crime,  and  makes  such 
named  crime  a  constituent  of  the  defined  crime,  in  an  indictment  for 
the  latter  it  is  not  sufficient  to  use  the  nu-re  statutory  language,  but 
tlie  particulars  constituting  the  named  crime  must  be  shown.  Titiut 
V.  State,  254.    (See  note,  pp.  25»,  360,  201.) 

0.  Murder  while  committino  rape— Indictment. —  In  an  indictment 
for  uiurdtT,  when  the  fact  that  the  killing  was  in  the  commission  of  a 
rape  is  relied  on  to  make  such  killing  murder  in  the  first  degree,  a 
count  in  the  general  form  authorized  by  the  forty-fifth  section  of  the 
New  Jersey  criminal  procedure  act  is  autKcient.     Id. 


INDEX. 


C3;3 


10.  BuRGLAiv/  — Indictment  — Negative  alleoations.— An  infoiinatioi; 

for  biiiKliu-y  under  section  4409,  Revised  Statutes  of  Wisconsin  of  1878 
establisliing  the  penalty  for  breaking  and  entering  in  tlie  night-timt, 
witli  intent  to  commit  a  felony,  need  not  allege  that  tlie  building  en- 
tered was  "  not  adjoining  or  occupied  with  any  dwelling-house.'' 
Qundij  V.  State,  203.     (See  note,  p.  263.) 

1 1 .  Information  for  felony  —  Sufficiency  of  allf.cjation  and  descrip- 

tion OF  property.—  An  allegation  in  an  information  that  the  defend- 
ant "  wilfully  concealed  a  large  amount  of  projjerty,  consisting  amonjj 
other  things  of  diamonds,  watches,  jewelry,  money,  and  otlier  persona) 
effects  belonging  to  him  and  to  his  estate,"  is  a  sufticient  ilescription 
of  such  property  on  a  charge  of  ])erjury  in  having  wilfully  sworn 
falsely  to  an  inventory  in  insolvency,  from  which  he  omitted  said 
property.     People  v,  Piatt,  409.    (See  note,  p.  502.) 

12.  Indictment  —  Motion  to  quash.—  When  the  articles  in  each  count  ol 

an  indictment  for  receiving  stolen  goods  are  the  articles  in  that  count 
alleged  to  have  been  stolen,  a  motion  to  quash  should  not  be  sustained. 
Com.  V.  Leonard,  593. 

13.  Indictment  — Description  of  offense  — Against  the  will,  etc.— 

Under  Penal  Cudeof  California,  section  211,  defining  robbery  to  be  the 
felonious  taking  of  personal  propertij  against  the  will  of  the  person 
robbed,  an  indictment  charging  the  defendant  with  taking,  "  by  means 
of  fraud  and  force,  .  .  .  $100  lawful  money  of  the  Uniteil  States, 
said  money  being  the  property'  of  one  M.,"  is  sutHcient.  People  v. 
Riley,  000.' 

14.  An  indictment  which  states  an  impossible  date  is  bad  on  motion  to 

quash.    Murphij  v.  State,  264.     (See  note,  pp.  265,  266.) 

15.  Indictment  —  Allegation  of  time.— An  indictment  should  set  forth 

with  precision  some  jiarticular  day  as  the  time  when  the  offense  was 
committeil,  although  it  is  not  essential  that  the  offense  charged  be 
proved  to  have  been  committed  on  the  precise  day  alleged,  except  in 
cases  wliere  time  is  nuilerial,  or  an  essential  element  in  the  constitu- 
tion of  the  offense,  and  where  the  only  allegation  in  reference  to  time 
is  stated  to  be,  "  heretofore,  to  wit,  at  tlio  supreme  judicial  court  begun 
and  holden  at  Machias.  within  and  fur  the  county  ot  Washington, 
aforesaid,  on  the  first  Tuesday  of  January  in  the  year  of  our  Lord 
1886,"  the  indictment  should  be  quashed.  State  v.  Inlason,  495.  (See 
note,  pp.  497,  498, 499.) 

See  Abduction,  2.  Breaking  and  Entering,  etc.,  1,  3.  False 
Pretenses,  etc.,  0.  Forgery,  1,  5.  Habitual  Criminals,  2.  In- 
toxicating Liquors,  4,  6.  Manslaughter,  2.  Robbery,  1.  Seduc- 
tion, 1. 

INSANITY  AS  A  DEFENSE. 


Insanity  as  a  defense  —  Proper  rule  of  legal  tiksponsibility.— 
Tlie  capacity  to  distinguish  between  rigiit  iiiid  wrong,  eitlier  abstractly 
or  as  applied  to  the  particular  act,  as  a  legal  test  of  responsibility  for 
crime,  is  repudiated  bv  the  modern  and  mure  advanced  authorities. 
legal  and  medical,  wlu)  hiy  down  llie  following  rules,  which  the  court 
now  adopts:  (1)  Wheie  there  is  no  such  capacity  to  distinguish  be- 
tween right  and  wrong  as  apjilied  to  the  particular  act.  there  is  no 
legal  responsibility.  (','i  ^VIlere  there  is  such  capacity,  a  delendant  is 
nevertheless  not  legally  responsible  if,  by  reason  of  the  duress  of 
mental  disease,  he  has  so  far  lost  the  jJ^ieer  to  choose  between  right 
and  wrong  as  not  to  avoid  doing  the  act  in  question,  so  th.-it  his  free 
agi'ncy  was  at  the  time  (le^troye(l ;  </(((/,  at  the  same  time,  the  alleged 
crime  was  so  connecteil  with  such  mental  ilisease,  in  the  relation  ot 
cani-e  and  ell'ecl,  as  tu  have  been  the  product  or  ollspring  of  it  solely. 
Parsons  v.  St  /tr,  ',0). 


631 


AMERICAN  CRIMINAL  REPORTS. 


3.  Delusional  insanity.— The  same  rule  applies  to  delusional  insanity, 
and  necessarily  conflicts  with  the  old  rule  laid  ilown  by  the  Enj;lisli 
judges,  in  McSiujlitcu's  Vase,  that,  in  case  of  delusion,  the  dulendant 
"must  be  considered  in  the  same  situation,  as  to  responsibility,  as  if 
the  facts  with  respect  to  wliicii  the  delusion  exists  were  real."  (The 
fourth  head-note  in  DomceWs  Cane,  63  Ala.,  303,  on  this  point,  pro- 
nouuced  obiter  dictum.)    Id. 

3.  Insanity  as  a  disease,  question  for  jury.  — The  existence  or  non- 

existence of  the  disease  of  insanity,  such  as  may  fall  witiiin  tiie  above 
rule,  is  a  question  of  fact  to  be  determined  in  each  i)articular  case  by 
the  jury,  enlightened,  if  necessary,  by  the  testimony  of  experts.     /(/. 

4.  Burden  of  proof  —  Reasonable  doubt.— When  insanity  is  set  up  as 

a  defense  in  a  criminal  case  it  must  be  established  to  the  satisfaction 
of  the  jury  by  a  preponderance  of  the  evidence,  and  a  reasonal)le  doubt 
of  the  defendant's  sanity,  raised  by  all  the  evidence,  does  not  justify 
an  acquittal.     Id. 

').  Non-experts  as  witnesses  in  insanity  c.\ses.— The  rule  on  this  sub- 
ject stated  in  Ford's  Case,  71  Ala.,  38.j,  adliere<l  to,  that,  while  non- 
experts may  give  their  opinions  on  the  qnestion  of  the  defendant's 
alleged  insanity,  such  opinions  must  first  be  prefaced  by  a  statement 
of  the  facts  upon  which  they  are  based.     Id, 


•,iC 


intoxicatin(}  liquors. 

1.  Constitutional  law  —  Provixce  of  jury.— The  right  of  a  jury  to 

weigh  the  evidence  and  determine  therefrom  tiie  guilt  or  imioL-t'iiceof 
the  accused  cannot  be  destroyed  or  materially  im|>aireil  by  the  legisla- 
ture.   State  V,  I nto.vicatiny  Liquors,  )mi.    (See  note,  p.  :iU3.) 

2.  Evidence.—  Under  Public  Laws  of  Maine  for  1887,  chapter  140,  provid- 

ing that  the  payment  of  the  United  States  special  tax  as  a  liciuoi-seher 
in  prima  facie  evidence  that  the  person  paying  the  same  is  a  common 
seller  of  intoxicating  liciuors,  it  is  error  to  instruct  the  jury  that  they 
must  lind  such  person  guilty  upon  proof  of  such  fact  alont ,  since  ti.c 
statute  only  means  to  make  such  evidence  conq)etent  and  sullicient  tn 
justify  a  verdict  of  guilty  if  the  jury  is  satisfied  of  defendant's  gniit 
beyond  a  reasonable  doubt.     Id. 

3.  Local  option  law  —  Indictment  —  Judicial  notice. —  An  indictment 

for  violating  a  local  option  law  need  not  contain  a  statement  of  all  the 
formalities  necessary  to  render  the  law  oiicrative.  Such  laws,  though 
local,  are  public,  and  the  court  takes  judicial  cognizance  thereof. 
Jones  V.  State,  204. 

4.  Division  of  district  —  Indictmknt.— Where  a  local  option  law  gov- 

erns an  entire  district,  and  a  portion  of  said  district  is  cut  oir.  ami, 
with  other  territory,  receives  a  new  name,  the  local  option  law  still 
remains  operative  through  the  part  not  cut  o(F,  and  it  is  not  nei'essaiy. 
in  an  indictment  for  >*.  violation  of  the  law  in  the  portion  of  the  dis- 
trict not  cut  ort',  specifically  to  state  that  the  oll'ense  was  not  com- 
mitted in  the  part  of  the  district  which  was  cut  otf.     Id. 

5.  Sale  to  minors — What  is. —  Where  a  minor  approaches  a  bar  with 

one  who  calls  for  two  drinks  of  whisky,  and  two  glasses  and  a  bottle 
are  set  up,  and  both  drink,  tlie  bar-keeper  is  guilty  of  a  sale  or  gift  to 
the  minor,  thoii;;h  he  ilid  not  know  one  of  the  drinks  was  intended 
for  him.     Page  v.  State,  207.    (See  note,  pp.  200,  300.) 

6.  Indict.ment  —  Sufficiency  —  Consent   of   parents. —  An  indictment 

under  code  of  Alabama  of  1870,  section  4205.  charging  a  gift  or  sale 
of  intoxicating  licpiors  to  a  minor  '*  without  the  re(|uisition  of  a  phy- 
sician, lor  medical  purposes,"  charges  no  indictable  otl'ense;  the  above 
act  haviug  been  amended  by  act  of  February  20,  1881,  under  which 


INDEX. 


635 


the  sale  is  locil  if  inatle  by  or  with  the  order  of  the  parent,  guardian, 
or  person  Imvinp;  tlie  ninnap;enient  and  control  of  the  minor,  or  upon 
the  prescriptiou  of  a  pliysician.     Id. 


INSTRUCTIONS. 

1.  Additional  instructions.—  The  jury,  after  it  retired  to  consider  its  ver- 

dict, returned  into  court,  and  made  rcciuest  for  further  instructions  on 
a  point  material  to  the  case.  Tlie  court  tliereupon  informed  the  jury 
that  tlie  court  iiad  already  charged  fully  on  that  subject,  and  declined 
to  charge  further.  The  charge  did  not  appear  in  tlie  case,  nor  were 
there  any  excejjtions  to  it  on  the  record.  JliM,  that  the  refusal  of 
further  instructions  was  not  erroneous.     Jackson  v.  State,  80. 

2.  Favokahle  instruction.— A  party  cannot  comjjlain  of  an  instruction 

that  limits  the  scope  of  the  charge  against  him.     Glover  ?'.  State,  113. 

3.  PRACTICK— INSTIUKTIONS— CUKDIBIUTY  OF  WITNESS.— An  instruction 

that  tlie  jury  might  reject,  wholly  or  in  part,  the  testimony  of  a  wit- 
ness who  had  "  wilfully  testified  falsely  in  regard  to  any  one  person 
or  any  one  particular  fact  in  the  case."  was  objected  to  on  the  ground 
tliat  it  should  only  have  told  the  jury  to  distrust  or  reject  tie  testi- 
mony of  a  witness  who  had  wilfully  sworn  falsely  "as  to  a  m;iterial 
point  in  the  case."  Held  that,  under  the  rule  "  that  a  witness  false  in 
one  part  of  his  testimony  is  to  be  distrusted  in  others"  (Code  Civil 
Proc.  Cal..  S  2081,  subd.  3J,  the  instruction  was  not  erroneous.  People 
V.  Flifiin,  lUO. 

4.  Chauoi.nu  AS  TO  FACT. —  The  mere  statement  in  an   instruction  that 

there  is  a  conflict  in  the  evidence  in  certain  respects  cannot  be  re- 
garded as  an  expression  of  an  opinion  upon  the  weight  of  evidence  or 
a  charge  with  respect  to  matters  of  fact,  in  violation  of  the  constitu- 
tion of  California,  article  (i,  section  19.  providing  that  "judges  shall 
not  charge  juri  's  with  respect  to  matters  of  fact,  but  may  state  the 
testimony  antl  declare  the  law."    Id. 

5.  Reasonable  douht. —  An  iiistrnction  that  the  jury  must  be  "  satisfied  " 

of  defendant's  guilt  is  not  erroneous  because  it  omits  the  words  "be- 
yond a  reasonable'  doubt,"  when  the  wliole  of  the  instructions,  taken 
together,  clearly  inform  the  jury  that  they  cannot  convict  the  defend- 
ant unless  they  are  satisfied  of  his  guilt  beyond  a  reasonable  doubt. 
Id. 

6.  RevI'est  by  accused.  —  Omissions  by  the  court  to   instruct  the  jury 

"that  no  jjichumiitimi  of  guilt  follows  from  [defemlant'sl  failure  to 
testify  on  liisown  behalf, "and  tculciiin-  the  phrase  "  reasonalile doubt," 
as  used  in  sonu  of  the  instruct  ions,  are  not  erroneous,  where  defend- 
ant's counsel  did  not  request  such  instructions  at  the  jiroper  time.    Id. 

4.  VVrrM:ss  — "False,"  "  \vilfuli.\  . "  etc.,  in  instruction.— An  instruc- 
tion to  the  jury  :  "  A  witness  false  in  one  part  of  his  testimony  is  to 
be  distrusted  in  other  parts."  —  being  substantially  the  language  of 
subilix  ision  il,  section  '^(Mil,  Code  Civil  IVocciInre, —  is  not  erroneous  be- 
cause ot  the  absence  of  the  word  "  wilfully '"  bt  lore  the  word  "false" 
therein.     JVo^t/c  r.  Treadurll,  153. 

8.  Instruction  as  to  circumstantial  evidence— The  court  properly 

instiucted  ilu'  jury  "that  when  the  evidence  is  entirely  circumstan- 
tial, yet  is  not  only  consistent  with  the  guilt  of  the  di'feiulant.  hut  in- 
consistent with  anj'  other  rational  conclusion,  the  law  makes  it  the 
duty  of  the  jury  to  conxivt,  notwithstanding  such  evidence  may  not 
be  as  satisfactory  to  their  minds  as  the  direct  testimony  of  credible 
eye-witnesses."    Stute  v.  Sliiigcrland,  3:i8. 

9.  Instructions  — PoisoNiNO.— The  court  charged  the  jury  that,  to  con- 

vict the  defendant,  it  must  bo  shown  that  lie  purposely  took  the  life 


636 


AMERICAN  CRIMINAL  REPORTS. 


of  the  (leceased  by  atlniinistering  poison  to  licr.  A  nninlpr  that  is 
coniniittod  by  means  of  poison  involves  and  presupposes  tiio  element 
of  malice,  jiremeditation  and  deliberation,  and  hence  it  was  needless 
for  tlie  court  to  state  that  they  were  prerequisites  to  a  conviction. 
State  V.  Baldwin,  877. 

10.  Court  l»efining  words.— The  court  takes  notice  of  tiie  meaning  and 

force  of  the  ordinary  words  of  our  language,  and  also  of  technical 
words,  wliere  their  meaning  is  well  settled  by  common  usage:  and  the 
court  may,  where  it  is  necessary,  define  and  explain  them  to  the  jurj*. 
Id, 

11.  CHr.OROFOUM  AS  A  POISON.— As  the  legislature  has  published  and  de- 

clared chloroform  to  be  a  virulent  poison,  by  a  law  which  all  are  i)re- 
sumed  to  know,  it  was  not  error  for  the  court  to  say  to  the  jury  that, 
"in  common  parlance,  chloroform  is  classed  among  the  jjoisons," 
when  he  couples  with  the  statement  the  direction  that  it  was  still  nec- 
essary for  the  jury  to  find  from  the  evidence  that  cidoroform  is  a 
poison,  before  the  defendant  could  be  convicted.     Id. 

12.  Instructions  as  to  motive. — The  defendant  cannot  bo  heard  to  com- 

))lain  of  an  instruction  requested  by  himself;  and,  with  respect  to  mo- 
tive, it  was  not  error  for  the  court  to  instruct  that  defendant  should  . 
be  judged  by  the  information  upon  which  he  acted,  rather  than  upon 
the  accuracy  of  his  information.     Id. 

13.  Reasonable  doubt. —  The  respondent  requested  the  court  to  charge 

the  jury  that  "if  they  believed  that  the  evidence,  upt)n  any  essential 
))oint  in  the  case,  admits  of  the  slightest  doubt  consistent  with  reason, 
the  prisoner  is  entitled  to  the  benefit  of  that  doubt  and  should  be  ac- 
(piitted."  The  court  declined  so  to  charge,  but  instructed  the  jury 
that  if  they  believed  "  tliat  the  evidence  upon  any  essential  point  in 
the  case  admitted  of  any  reasonable  doubt  —  a  doubt  consistent  with 
reason  —  the  prisoner  is  entitled  to  the  benefit  of  it."  Jhkl  correct. 
State  V.  Meyer,  428.     (See  note,  pp.  430,  437,  438.) 

14.  Jurors  judges  of  law.— There  is  no  qualification  of  the  right  of  the 

jurj"  in  a  criminal  cause  to  disregard  the  instructions  of  the  court  as 
to  tlie  law,  and  they  may  adopt  their  own  theory  of  the  law,  even  if 
it  be  more  ))rejudicial  to  the  respondent  than  the  law  given  them  by 
the  court.     Id. 

15.  Presumption  of  intent  —  Instructions. —  It  is  not  error,  in  a  murder 

trial,  to  instruct  the  jury  that  "  a  person  is  presumed  to  intend  what 
his  acts  indicate  his  intention  to  have  been ;  and  if  tlie  defendant  fire(l 
a  loaded  pistol  at  the  deceased  and  killed  him,  the  law  presumes  tliut 
the  defendant  intended  to  kill  the  deceased;  and,  unless  the  defendant 
can  show  that  his  intention  was  other  than  his  act  indicated,  the  law 
will  not  hold  him  guiltless."    People  v.  Laiujton,  439. 

16.  Instructions  —  It  is  not  error  to  instruct  the  jury  that,  in  considering 

tiie  credibility  of  a  witness,  "you  may  consider  his  inipeachment  in 
case  he  has  been  successfully  impeached."    Shular  v.  State,  509. 

17.  Instructions  to  jury. —  An  instruction  to  the  jury  to  find  the  defend- 

ant guilty  if  he  killed  the  deceased  "  by  choking  and  strangling  her, 
by  fixing,  fastening,  etc.,  his  hand  about  her  neck  and  tlu'oat,  and 
then  by  throwing  her,  so  choked  and  strangled,  into  the  well,"  etc., 
was  held  sufiiciently  explicit  in  specifying  the  means  of  death.  State 
V.  Leabo,  533. 

INTENT. 

1.  Malum  prohibitum  —  Intent. —  When  a  statute  makes  indictable  an 
act  which  is  merely  malitiii  prohibitum  when  done  "  wilfully  and  ma- 
liciously." the  existence  of  an  evil  mind  in  doing  the  forbiilden  act  is, 
as  a  general  rule,  a  constituent  part  of  the  otfense.  Foltcell  v.  State, 
288. 


INDEX. 


G3( 


2.  Particular  case. —  A  person  was  indictod  iindor  tlio  act  proliibitin-j 
tlie  wilfully  and  inaliriously  tearing  down  of  a  alicrilf's  advortlsonicnt. 
Held,  that  the  defendant  had  tho  right  to  show  that  ho  tore  down  such 
paper  without  any  evil  design.    Id. 

See  Larceny,  0.    Mayhem,  3.    Murder,  10,  16. 

JURISDICTION  OVER  OFFENSE  OF  RECEIVING  STOLEN  PROP- 
ERTY. 

Receivino  stolen  property,  knowing  it  to  be  stolen,  is  a  complete  of- 
fense, distinct  from  tho  larceny  of  th(!  saino  property,  and  the  circuit 
court  of  the  county  in  which  the  property  was  received,  and  not  of 
the  county  in  which  tho  larceny  was  committed,  has  jurisdiction  of 
the  offense  of  receiving  the  propcrtj',  knowing  it  to  be  stolen.  Alii- 
son  V.  Coininonweulth,  ilOl.    (See  note,  p.  304.) 


JURY. 

Waiver  —  Prockedino  to  trial  by  defendant  waives  any  objec- 
tion TO  performance  of  statutory  REyuiKKMEXTS.— In  a  criminal 
case  the  record  need  not  show  that  a  copy  of  tiie  indictment  and  a  list 
of  jurors  was  served  on  the  defendant  as  reijuired  by  the  statute.  If 
tile  defendant  proceeded  to  trial  without  objection  on  this  account  tho 
prt'sumi)tion  against  him  is  conclusive  that  copies  were  duly  served. 
Patternon  v.  State,  !J()C. 

Whole  panei-  summoned  need  not  be  present  when  case  moved.— 
It  is  not  a  ground  of  exception  that  some  of  the  general  panel  of  jurors 
faileil  to  answer  to  tlieir  names  when  the  case  was  removed  for  trial. 
Tlie  statute  now  re(iuires  that  the  forty-eight  jurors  shall  be  sum- 
moned for  service,  and  that  a  list  of  them  shall  be  served  on  the  de- 
fendant. It  does  not  require  that  all  the  jurors  shall  be  present  when 
the  case  is  moved.     Id. 

•  The  court  has  power  to  excuse  jurors  for  good 


8.  Court  may  excuse. - 
cause.     Id, 


4.  Order  of  rioht  to  challenge  in  discretion  of  court.—  It  is  within 
the  iliscretion  of  the  court  to  determine  the  order  in  which  the  right  t  > 
challenge  shall  be  exercised  by  the  state  or  by  tlio  defendant,  and  no 
exception  lies  to  the  exercise  of  that  discretion.     /(/. 

r>.  No  ERROR  TO  ORDER  SHERIFF  TO  HAVE  TALESMEN  PRESENT  ON  A  FUTURE 

DAY. —  It  is  not  erroi'  in  the  trial  court  to  order  the  sheriff  to  have 
present  in  court  (jii  a  future  day  the  requisite  number  of  qualified 
jurors  to  serve  as  talesmen.     Id, 

((.    TaI.ESMKN   MAY   BE  SELECTED   FROM  ANY    PART  OF  COUNTY.—  It    IS    not 

necessary  tt)  s(  lect  talesmen  from  those  actually  jiresont  in  or  about 
the  court  room.  The  officer  may  go  out  into  the  county  and  smnmon 
them.    Id. 

7.  Not  ERROR  TO  ORDER  TALESMEN  WHEN  PART  OF  ORIGINAL  PANEL  DO 
NOT  ANSWER.  —  There  was  no  error  in  ordering  the  tales  when  three 
of  the  original  panel  of  jurors  had  not  appeared  and  answered  to  tho 
call  of  their  names.     Id, 

H.  Defendant  entitled  to  two  days'  service  of  tales.—  A  defendant 
is  entitled  to  two  days'  service  of  the  tales.  The  proper  practice  is, 
unless  service  is  waived  in  open  court,  to  adjourn  the  cause  for  the 
purpose  of  making  service.    Id. 

'.).  No  GROUND  FOR  EXCEPTION  THAT  TALES  DID  NOT  ALL  RESPOND.— The 
tales  havitig  been  duly  served  in  this  case,  it  was  not  a  legal  grouml 
of  exception  that  three  of  the  talesmen  did  not  answer  to  their  names 
when  tlie  trial  proceeded.     Id. 


G38 


AMERICAN  CRIMINAL  REPORTS. 


ifl! 

^^^^m*  ' 

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^^^skWB 

wbHh|k  > 

H 

^^^Db"'j: 

J«^H 

B^^Ei 

ImB 

^^^^^R  V 

DHH^, 

t^'^^^HI 

n^SlP  ^ 

''WBM 

|^n| 

10.  No  ononND  of  exception  that  onk  talksman  is  exrmpt  from 

UCTY.—  It  is  not  Kruund  of  t'xcei)tion  tlmt  ono  of  the  talesmen  is  ex- 
empt from  jury  duty.  Tliat  whicli  exempts  but  doc  not  diHcjiuilify  is 
no  cause  for  clialleiiKe.     Id. 

11.  JUROllS  MUST  BE  DRAWN    IN    PRESENCE    OF    THE    COURT.— The   KCnoinl 

panel  of  jurors  for  tiie  term  must  he  drawn  in  tiie  presence  of  the 
court  of  common  pleas.  In  Monnmuth  county  tlie  presence  of  three 
judges  is  necessary  to  constitute  the  court  of  common  pleas.     Id, 

13.  CHAU.EXdEs  —  Judge's  duty  to  try.  — Tlic  judge  of  the  court  havinR. 
under  our  statute,  the  duty  to  try  challenges,  his  finding  upon  cjues- 
tions  of  fact  involved  in  a  challenge  is  conclusive.  His  decision  is 
reviewable  only  when  he  makes  a  mistake  in  principle  indeterminhig 
whether  a  challenge  shall  prevail.     Id. 

13.  JUKOU  HAVIXO  Al'TED  IN   A   FORMER  CASE   BET\VEEN  SAME   PARTIES  HAS 

NOT   FORMED   AN   OPINION  SUFFICIENT  TO   SUSTAIN   A   CHAM.ENUE.— Til" 

fact  tliiit  a  juror  had  served  in  another  case  of  the  stiite  against  the 
same  defendant  at  the  same  term,  and  that  he  had  fornu'd  an  o|)ini()n 
in  tliiit  case,  is  not  piifiicient  to  sustain  a  chr.llenee  hy  the  state.    Itl. 

14.  Chali.e.vues  — Joi.vr  indictment.— Unde-  Revised  Statutes  of  Maine, 

chapter  8J,  section  74,  giving  to  each  party  m  criminal  cases  not  capi- 
tal two  ]i('icmptniy  cliailengcs,  where  there  are  several  derendants 
jointly  indicted,  they  are  jointly,  and  not  severally,  entitled  to  the 
peremptory  cliallenges  allowed  by  statute,  mute  v.  Cudy  i;t  uL,  ;j()4. 
(See  note,  p.  oU(i.) 

15.  Exclusion  dy  the  court  —  Exceptions.— Excej)tions  do  not  lie  to  the 

exclusion  from  the  panel  of  a  juror  whom  one  defendant  objticts  to 
and  another  defendant  desires  to  retain.     Id. 

10.  SwEARixci  JURY  — Record— It  is  highly  important  and  necossiiry  thai 
tlie  oath  slionld  bo  administered  to  the  jury  in  a  criminal  case  with 
due  solemnity,  in  the  presence  of  the  jirisoner  and  before  IIk;  court, 
and  sulistantiidly  in  the  manner  prescribed  bylaw;  but  it  is  no  jiirt 
of  the  duty  of  the  clerk  to  place  on  the  record  the  formulary  of  words 
in  which  the  oath  is  couched.     >'ittitc  v.  Duldiriii.  !J77. 

17.  Irrko CLARITY  IN  OATH  —  NECESSITY   OF   oBJECTiN(;.— Where  a  party 

desires  to  avail  himself  of  irregularity  in  administering  the  oath  to  the 
jury  the  att'iition  of  ihe  court  sIkjuIU  be  called  to  it  at  the  time  tiie 
oath  is  taken.     Id. 

18.  Juror  — QUAUFicATioN  of  — Opinion  — Challenge  for  cause.— Tlie 

mere  formation  and  expression  of  an  opinion  of  a  juror  as  to  the  gnilt 
of  the  accused,  based  upon  newspaper  te|K)rts,  is  not  a  discpialiliia- 
tion;  but  the  opinion  must  be  an  aliiding  bias  in  the  mind,  based  upon 
the  sub.stuntial  facts  of  the  case,  in  the  e-xistence  of  which  the  juror 
believes.    State  V.  Metjer,  428. 

]i).  Juror  —  Competency  of  —  Affidavits  and  counter-affidavits.— 
Ol)Jections  to  a  verdict  on  the  ground  of  incompetency  of  jurors  for 
the  reason  that  they  liad  previously  formed  and  ex|)ressed  opinions 
aresuiiported  in  this  case  by  altidavits.  ami  resisted  by  counter-atlidii- 
vits  of  the  jurors  themselves,  and  of  persons  alleged  to  have  been  pres- 
ent at  the  times  in  question.  These  affidavits  and  counter-alHdavits 
are  reviewed,  and  tlie  objection  overruled.  Mere  f\c  piivtc  alKdavits 
alleging  that  jurors  had  previously  formed  and  expressed  opinions  are 
a  most  unsatisfactory  mode  of  establishing  any  such  fact.  Hughes  v. 
People,  m2. 

20.  Sickness  of  juror.— The  sickness  of  a  juror  for  a  short  space  of  time, 
after  their  retirement  from  tlic  bar,  is  not  ground  for  setting  aside 
their  verdict,  where  the  ileliberations  of  a  jury  were  entirely  sus- 
pended until  after  the  ju:or  was  so  far  restored  that  lie  could  and  tlul 
take  part  in  their  deliberations.     Id. 


INDEX. 


039 


21.  JuilOn  — CnMI'RTF.NCY  OF  —  f'lRfTMSTANTTAI,  KVIDF.Nf'R  —  Tt  is  not  OlTor 
for  tilt!  nouil  to  exfliido  from  tlie  jury  t host;  wlio  declari!  on  tlicir 
Vdir  (lire  that  thiy  would  not  fonvict  of  iiiurdor  on  circuinfitaiitial 
evidonco  alone.    Slate  v.  Lcabo,  .'»;W. 

KIDNAPING. 

Wii.vT  C'ONSTITUTRS  FALSE  PUETEXSF.H.— Wlipro  dcfondont  indurod  n 
fenialu  vohuitarily  to  take  iiassay;('  for  a  foreii^n  pDrt.  under  ])reti'na«' 
that  lie  liad  tlifru  obtained  ciiiiiloyiiicnt  for  her,  hut  intending  to  place 
lier  in  ii  lioune  of  prostitution,  iind  it  appears  that  she  would  not  have 
consented  tt)  K'>  ''"t  lor  such  false  pretense,  he  is  Huiltv  of  tlit»  cITciise 
defined  in  11  licvised  Sliitutes  of  New  Vt)rlc,  part  4,  title  2.  sei'tioii  'iH 
(I'enal  Code,  5;  Jll),  wliieh  provitles  that  one  who,  wit;iout  lawful  au- 
thority, inveifiles  aiiolhcr.  with  intent  to  cause  him  tt)  be  sent  out  of 
the  state  against  his  will,  shall,  upon  conviction,  be  punished,  etc. 
I'cvjile  c,  De  Leuii,  81-1. 


LARCENY. 

1.  FOIIMKU  JFOPAltDY  — IjAUCFNY   FROM   SAAtR   KOOM  —  PltOFFRTY  OF   DIF- 

FKKi''.'.T  I'Kltso.NS, —  Two  in<lictnients  were  brought  a;j;aiiist  a  defend- 
ant,--oiu;  for  l)Ur;;lariously  enterinjj;  a  house  and  committing' a  lar- 
ceny by  takin;;  and  carrying  away  clt)tliin^;  anil  the  titlier  cliar;i;infj; 
the  simple  larceny  of  clothing'  beltiiif^iiifj;  to  iiiiother  jierson.  Ii  a|)- 
pears  that  all  the  articles  were  taki'H  from  the  same  room.  Held, 
that  an  aci|uiltal  upon  the  first  indictment  was  no  bar  to  tin.'  trial 
umler  the  sci-ontl  indictment  upon  the  ground  of  "  former  jeoiiardy," 
there  bein;;  two  separate  and  distinct  larcenies.  I'liillipH  v.  Utate, 
a  18.     (See  note,  p.  Wi-L) 

2.  IXDR'TMKXT  — OWSKltsmi'  t)F    I'liOl'l'.HTY  —  Cl.OTiriNO   BF,U)XOIX(l  TO   A 

Mir.'tii;. —  In  an  iiulitiment  for  the  larceny  tif  cloiliing  from  a  room,  it 
is  proper  to  cliar;;e  the  t)wiiersl)ip  of  the  clothiiif;'  in  a  woman,  tliouf^h 
u  minor,  she  beiii}^  eit;liteen  years  of  aye  and  owning  and  using  the 
clothing  as  her  own.     Id. 

8.  Lauckny  liY  AUTiFit  F  —  If  by  means  of  any  triek  or  artifice  the  owner 
of  property  is  iiidnccd  to  part  with  the  possession  only,  still  mejining 
to  retain  the  right  of  property,  the  taking  by  such  means  will  amount 
to  larceny,  provideil  it  bu  done  (tiiiino  fiiraiidi.     Com.  r,  Eichdbenjer, 

m\. 

4.  FUAIDUI.ENT  st'BSTiTfTliiX  OP   SMALLER   xoTE.— Defentlant,  being  in- 

deliteil  to  a  bank  for  !?l,0()().  paii!  the  ca^illier  the  discinint  tlu'reon  for 
aiiollier  ninety  tiays,  and  in  exchange  for  liie  original  note  gave  liiir. 
one  for  ."iUO.  with  ilie  tieliberate  intent  and  design  totlerrand  the  baiilc, 
till'  cashier  believing  he  was  giving  him  a  note  for  the  iji.OOO.  Held, 
that  ilefendant  was  guilty  of  larceny.     Id. 

5.  R(ii5i5F.RY  —  IxDR'TMENT  —  Larckxy. —  At  coinuion  law  one  indicted 

for  roblii'ry  coulil  not  be  convicted  of  larceny.  The  statute  of  Arkan- 
sas piovides  that  "  upon  an  iiitlictment  for  an  offense  consisting  of  dif- 
ft'ieiit  tlcgrces,  the  defendant  may  be  found  guilty  of  any  degree  not 
higher  than  tliat  charged  in  the  iiitlictment,  and  may  be  fouml  guilty 
of  any  tilfeiise  included  in  that  charge  iu  the  indittment."'  ILld,  that 
the  crime  of  rolibery  being  an  aggravated  or  com|ioniid  larceny,  a 
conviction  of  graiul  larceny  upon  an  indictment  for  rol)bery  is  proper 
if  tlie  jury  is  in  doubt  which  olfense  defendant  committed.  Hideij  v. 
State,  ij'jy.    (See  note,  p.  \rdi.) 

0.    POSSESSIOX  OUTAIXED   DY  FUACD  —  U«E  OF  FU.WD— FaLSK  PRETEXPES. 

All  insii'uction  that  if  I  be  property  taken  was  obtained  by  stealth  or 
frautl.  v.ith  intent  to  steal  the  same,  the  olreni^e  of  larceny  was  n  ide 
out,  is  erroneous.     Where  the  owner  parts  with  the  property  by  con- 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


m  ^^  ■■■ 

itt  Itt   12.2 

St  US   1 2.0 
lit 


6" 


I^iotographic 

Sciences 

Carporation 


33  WIST  MAM  STMKT 
WnSTIR,N.V.  USM 

(7U)t7a-4S03 


f 


c 


^ 


640 


AMERICAN  CRiraNAI.  REPORTS, 


I 

h 


sent,  there  is  no  trespass,  and  the  offense  is  that  of  cheating  at  com- 
mon law,  or  the  statutory  offense  of  false  pretenses.     Id. 

7.  Threat  —  Partinq  with  possession  to  avoid  public  exposure.— 

Upon  a  trial  for  robbery  resulting  in  a  conviction  of  grand  larceny 
there  w.^8  evidence  sliowing  that  tlie  proi)i.'rty  obtained  was  volun- 
tarily given  by  the  prosecuting  witness  to  siiield  himself  from  a 
threatened  exposure  of  crime  by  defendants.  Held,  that  defendants 
were  entitled  to  .in  unqualified  instruction  that,  if  the  jury  should 
find  that  the  prosecuting  witness  had  parted  with  the  property  to 
sliicld  himself  from  prosecution,  or  to  avoid  a  public  eliarge  of  crime, 
the  offense  of  larceny  was  not  commitlfd,  and  that  it  was  error  for  the 
court  to  modify  a  requested  instruction  to  that  effect  by  adding  the 
idea  of  fraud.     Id. 

8.  Possession  of  stolen  goods  — Instructions  — Reasonable  doubt.— 

Under  an  indictment  for  larcenj'  the  court  instructed  the  jury  that, 
"  as  the  defendant  admits  that  lie  had  the  articles  stolen  in  his  posses- 
sion .  .  .  after  the  crime  was  committed,  you  would  be  justified 
in  finding  him  guilty,  unless  he  h.is  satisfied  j'ou  that  his  possession  at 
that  time  was  not  obtained  by  stealing  them."  Ilcdl,  that  the  cliarg*' 
was  erroneous,  as  recjuiring  the  defense  to  raise  not  only  a  reasonable 
doubt  of  guilt,  but  to  sutiufy  the  jury.  State  v.  Kirkpatridc,  <1<]4. 
(See  note,  pp.  'SJG,  a37.) 

9.  Larceny  —  Taki\(J  without  intent  to  deprive  owner  of  the  prop- 

erty.—  The  crime  of  lan-eny  is  established  by  proof  that  the  defoiid- 
ant,  in  taUing  the  property,  intended  to  |)erinanently  deprive  tlu 
owner  of  it;  although  the  inU'iition  did  not  include  the  jiosscssion  ol 
the  property  for  defendant's  i)ecuniary  profit.  Slate  v.  Slingerlaiid. 
838.     (See  note,  p.  345.) 


MANSLAUGHTER. 


1.  Homicide  — Murder  — Instkuotioxs— MANSLAuaiiTEu.- On   a  trial 

upon  a  charge  of  murder,  it  Iroin  the  evidence  it  is  clear  that  the  eriiin 
of  manslaughter  is  not  involved,  it  is  not  error  for  the  court  to  rdue 
to  give  an  instruction  defining"  manslaughter."  People  i:  Lc.c  (Jam,  61. 

2.  Indictment  —  Joixn.ER  of  counts  —  Motion  to  elect.—  An  information 

containing  three  counts  drawn  under  section  !)10T  of  Howell's  Statute.'- 
of  Michigan,  and  cliar^in^  res])ondi-nt  with  criminal  abortion,  and  an 
additional  count  diarizing  manslaughter  at  common  law  coinmitti'd 
upon  a  day  std)S('(|U<'iit  to  the  time  inentioiu'd  in  the  foniicr  counts, 
charges  offenses  which  arc  ililfcrcnt  in  their  nature,  jind  it  was  error 
to  overrule  a  motion  to  elect,  inaile  at  the  close  of  the  testimony.  J'co- 
pie  V.  Aiken,  34.'>.     (See  note,  pp.  3(14,  305.) 

3.  Dying  declarations  —  Fear  of  death.  — No  set  form  of  words  sliould 

be  required  in  a  dying  declaration  to  show  that  the  declarant  was 
under  a  belief  of  speedily  impeniling  death.  The  comt  must  draw  a 
rational  conclusion  from  all  that  was  said,  taken  in  comu'ctiou  with 
8U(;h  surrounding  circumstances  as  must  have  been  known  to  the 
declarant,  as  to  whether  the  declarant  was  in  such  a  condition  of  mind 
as  would  render  his  declarations  competent.  State  v.  Johnson,  300. 
(See  note,  p.  30«.) 

4.  Manslauohter  — Suddf;n    passion  — Instruction.— Where   the   evi- 

dence tended  t<J  show  that  derendant,  without  hostile  intent,  sought 
an  interview  with  deceased,  who  became  enrag<'d.  and  assaulted  de- 
fendant, inllicting  pain,  and  (let'eiidant,  under  the  |)assion  thus  en- 
gendered, killed  deceased,  tile  pain  would  amount  to  "  adecpiate 
cause,"  so  as  to  reduce  the  killing  to  ni,inslauu,l)ter,  and  failure  to 
affirmatively  so  charge  was  error.     Bounarl  v.  State,  4".3. 


INDEX. 


641 


g  at  com- 

POSURE.— 
ul  larceny 
'lis  voluii- 
If  from  a 
lefondants 
iry  should 
roperty  to 
!  of  crime, 
ror  for  thp 
diling  the 


S  DOUBT.— 

jury  that, 
his  possc's- 
e  justifie'l 
ssesisioii  lit 
the  chargr 
reas(>nal)U' 
trick,  oM. 


THE  I'uor- 
le  (lefuiid- 
eprive  tiu 
ssi's.-sioii  ot 
iiigerlaiiil. 


Justifiable  homicide  — Self-defense.— Where  there  was  evidence 
tending  to  show  that  defendant,  without  hostile  intent,  but  for  the 
purpose  of  demanding  pay  for  certain  spurs,  sought  an  interview  with 
deceased,  and  a  quarrel  ensued  in  which  deceased  made  an  assault 
with  a  pirtol  on  defendant  so  as  to  create  in  defendant's  mind  a  reason- 
able apprehension  of  death  or  serious  bodily  harm,  and,  acting  on 
such  apprehension,  defendant  shot  and  killed  deceased,  the  killing  was 
justifiable  on  the  ground  of  self-defense.    Id,    (See  note,  pp.  467,  468.) 

Homicide  —  Self-defense—  Defense  of  brother.—  The  general  rule 
is  that  a  brother  may  lawfully  defend  his  brother  when  in  peril,  and, 
if  need  be,  take  life  iu  such  defense;  but  when  both  the  brothers  are 
in  fault,  and  unite  in  bringing  on  the  fatal  rencounter,  this  general 
rule  does  not  apply,  and  there  must  be  a  retreat,  or  an  attempt  to  re- 
treat, before  either  of  the  brothers  can  be  excused  or  justified  in  slay- 
ing the  person  whom  they  have  assailed.    Smurr  v.  State,  645. 

MAYHEM. 

Ma'  JEM  —  Intent,  when  presumed. —  In  a  prosecution  for  maiming, 
under  section  177,  Penal  Code,  the  injury  must  be  wilfully  inflicted, 
"with  the  intent  to  injure,  disfigure,  or  disable;"  but  the  '"intent"  is 
to  be  presumed  from  the  act  of  maiming,  unless  the  contrary  appears. 
State  V.  Hair,  369. 

Definition  of  intent.—  The  "  intent "  referred  to  in  the  statute  may 
be  defined  to  be  the  purpose  at  the  time  to  do,  without  lawful  author- 
ity or  necessity,  that  which  the  statute  forbids;  and  the  words  "in- 
tent to  injure"  refer  to  injuries  of  the  snme  class  specified  in  the 
statute,  or  such  as  might  reasonably  be  expected  to  be  dangerous,  or 
result  in  serious  bodily  harm.    Id.    (See  note,  p.  373.) 


)n  a  trial 
it  theoriiiii 
t  to  rc(U( 
;('  (Jam,  61. 

iiforinatioii 
i'.s  Statutes- 
oil,  ami  an 
eoiniiiitted 
icr  (■(Hints, 
'{,  was  error 
iiony.   /•*<•"• 

irds  should 
■iarant  was 
list  draw  a 
'ction  with 
wii  to  the 
on  of  mind 
hnnon,  'MM. 

s  the  evi- 
L'lit.  sought 
saulted  de- 
n  thus  eii- 
"  adequate 
I  failure  to 


MOTIVE. 
See  Arson,  2.    Instructions.  12.    Murder,  7.    Rape,  6. 

MURDER. 

Death  caused  mediately  by  wound,  immediately  by  mismanage- 
ment.— The  fact  that  death  ensues  from  a  wound  given  in  malice,  not 
in  its  nature  fatal,  but  wliicti,  being  neglected  or  mismanaged,  caused 
death,  will  not  excuse  the  party  who  gave  it;  but  he  will  be  held 
guilty  of  murder,  unless  it  clearly  appear  that  the  deceased's  own  neg- 
fect  and  want  of  care,  and  i.ot  the  wound  iti  elf,  was  the  sole  cause  of 
his  death.     Cj-m»i  v.  State,  372.    (See  note,  pp.  374,  375,  376,  377.) 

Evidence  —  Theory  of  suicide. —  Where  there  are  some  circumstances 
which  suggest  that  a  persou  charged  to  have  been  murdered  com- 
mitted suicide,  it  is  competent  for  the  prosecution,  for  the  purpose  of 
repelling  the  theory  of  suicide,  to  show  by  an  ordinary  witness  who 
was  intimate  with  the  deceased,  and  was  with  her  tlie  evening  before 
her  deatu,  that  she  was  then  in  good  spirits  and  appeared  to  be  happy. 
State  V,  Baldwin,  377. 

Opinion  —  Facts  made  up  of  combination  of  appearances.—  Facts 
wbich  are  made  up  of  a  great  variety  of  circumstances  and  a  combina- 
tion of  appearances,  that  cannot  be'fuUy  described,  may  be  shown  by 
the  opinion  of  ordinary  witnesses,  whose  observation  is  such  as  to  jus- 
tify it.    Id, 

L  Demeanor  of  prisoner. —  The  demeanor  of  one  charged  with  crime, 
at  or  near  the  time  of  its  commiasion,  or  of  his  arrest  for  the  same, 
may  always  be  shown;  and  the  testimony  of  the  ofiicer  who  sub- 

■j^,    VOL.VII— 41 


642 


AMERICAN  CRIMINAL  REPORTS. 


poenaed  and  took  the  defendant  before  the  coroner's  jury,  that  "  he 
was  very  nervous  and  showed  a  great  deal  of  fear,"  was  admissible. 
Id. 

6.  Experts  —  Wood- workers. —  A  panel  bad  been  cut  and  taken  from 
the  outside  door  of  the  house  where  the  offense  was  committed;  and 
when  the  defendant,  who  was  a  carpenter,  was  arrested,  a  knife  was 
found  on  his  person.  Witnesses  who  are  skilled  workers  in  wood  may 
be  called  to  show  that  in  their  opinion  the  panel  had  been  cut  out  with 
a  knife ;  that  the  blade  of  defendant's  knife  exactly  fitted  the  place 
where  the  panel  had  been  pierced ;  that  it  had  been  cut  from  the  out- 
side by  one  skilled  in  the  use  of  tools,  and  was  evidently  taken  out  by 
one  ^ho  understood  the  construction  of  a  door.    Jd. 

6.  Witness — Cross-examination  —  Previous  statement.— Where  the 

defendant  produced  a  witness  who,  with  a  view  of  showing  the  con- 
scious innocence  of  the  defendant,  testified  what  his  conduct  and  ap- 
pearance was  soon  after  the  death  of  his  sister,  it  was  proper  to  inquire, 
on  cross-examination,  if  the  witness  had  not  stated  at  the  preliminary 
examination  that  the  conduct  of  the  defendant  impressed  him  at  once 
as  being  guilty  of  the  murder.    Id, 

7.  Instructions  as  to  motive.—  The  defendant  cannot  be  heard  to  com- 

plain of  an  instruction  requested  by  himself;  and,  with  respect  to  mo- 
tive, it  was  not  error  for  the  court  to  instruct  that  defendant  shoukl 
be  judged  by  the  information  upon  which  he  acted,  rather  than  upon 
the  accuracy  of  his  information.    Id. 

8.  Evidence  —  Error  to  permit  co-defendant  to  testify,  when.— In  a 

trial  for  murder  it  is  error  to  permit  one  who  is  jointly  indicted  with 
the  defendant  and  others  to  testifv  on  behalf  of  the  state,  when  the 
case  against  himself  is  not  disposed  of  by  conviction,  acquittal  or  nolle 
prosequi,  though  he  is  not  put  upon  bis  trial.  State  v,  Chyo  Chiagk, 
407. 

9.  Evidence  —  Co-defendant. —  Under  Revised  Statutes  of  Missouri,  1879, 
.  section  1918,  which  provides  that  "  no  person  shall  be  incompetent  to 

testify  as  a  witness  in  any  criminal  cause  or  prosecution  by  reason  of 
being  the  person  on  trial  or  examination,  .  .  .  provided  that  no 
person  on  trial  or  examination  .  .  .  shall  be  required  to  testify, 
but  any  such  person  may,  at  the  option  of  the  defendant,  testify  in  his 
behalf,  or  on  behalf  of  a  co-defendant,"  it  is  error  to  refuse  to  permit 
the  co-defendants  of  the  accused,  jointly  indicted  with  him,  but  not 
put  on  trial,  to  testify  in  his  behalf.    Id, 

10.  Instruction  — Accomplice  — Corroboration.— Under  section  1917, 

Revised  Statutes  of  Missouri,  the  testimony  of  an  accomplice  must  bo 
corroborated  by  other  evidence  in  respect  to  the  identity  of  the  accused. 
Hence  an  instruction :  "  The  testimony  of  an  accomplice  is  admissible, 
yet,  when  not  corroborated  by  the  testimony  of  some  person  not  im- 
plicated in  the  criuie  as  to  mattei's  material  to  the  issue,  ought  to  lii> 
received  with  great  caution  by  the  jury,"  is  erroneous,  because  it  does 
not  show  that  the  words  "  matters  material  to  the  issue  "  include  the 
identity  of  the  accused.    Id. 

11.  When  two  crimes  are  committed  both  may  be  proved.— The  ap- 

pellant was  charged  with  the  murder  of  a  citizen,  not  an  officer,  who 
was  pursuing  him.  Testimony  was  adduced  tending  to  prove  that  the 
accused  was  a  member  of  a  gang  of  pickpockets  who  were  plundering 
citizens  assembled  at  a  political  meeting;  and  it  was  held  competent 
to  prove  that  pockets  were  picked  by  the  gang  of  which  the  accused 
was  a  member.    Kennedy  v.  State,  422. 

12.  Murder  — Killing  a  citizen  pursuing  a  felon.— It  is  murder  for  .i 

pickpocket  to  kill  a  citizen  who  is  in  fresh  pursuit  of  him  for  the  pni- 
pose  of  making  an  arrest.    Id. 


INDEX. 


643 


18.  Bight  op  a  citizen  to  arrest  a  felon.—  A  citizen  who  has  knowl- 
edge of  tlie  commission  of  a  felony  may,  upon  fresh  pursuit,  lawfully 
arrest  the  felon  without  a  warrant.    Id, 

14.  Dequees  of  uxtrder  — Charqe  of  court  jiust  clearly  define.— It 
is  the  duty  of  the  court,  upon  the  trial  of  a  defendant  for  murder,  to 
instruct  the  jury  fully  as  to  what  constitutes  each  offense,  so  Ihat  they 
may  have  a  correct  standard  by  which  to  determine  the  degree.  The 
simple  reading  of  the  statute  declaring  what  is  murder  in  the  first  de- 
gree, and  the  statement  that  all  other  kinds  of  murder  are  murder  of 
the  second  degree,  is  not  a  sufficient  explanation  or  deflnftion  of  the 
different  degrees.    State  v,  Meyer,  428. 

16.  Presumption  in  favor  of  innocence  and  op  lesser  offense.—  The 
state  must  first  overcome  the  presumption  of  innocence,  and  then  show 
beyond  any  reasonable  doubt  the  degree  of  the  offense.  The  presump- 
tion is  first  in  favor  of  innocence,  and  then  of  the  lesser  degrees  of  the 
offense  in  their  order.    Id. 

16.  Presumption  of  intent— Instructions.— It  is  not  error,  in  a  murder 

trial,  to  instruct  the  jury  that  "a  person  is  presumed  to  intend  what 
his  acts  indicate  his  intention  to  have  been ;  and  if  the  defendant  fired 
a  loaded  pistol  at  the  deceased  and  killed  him,  the  law  presumes  that 
the  defendant  intended  to  kill  the  deceased ;  and,  unless  the  defendant 
can  show  that  his  intention  was  other  than  his  act  indicated,  the  law 
will  not  hold  him  guiltless.  People  v.  Langton,  439.  (See  note, 
pp.  441,  442,  443.) 

17.  Degrees  op  crime  —  Drunkenness  op  dependant.— Drunkenness  on 

part  of  defendant  cannot,  in  a  murder  trial,  form  a  legitimate  matter 
of  inquiry  as  between  the  crime  of  murder  in  the  second  degree  and 
that  of  manslaughter ;  for  manslaughter  is  the  unlawful  killing  of  a 
human  being  without  malice,  express  or  implied,  and  without  any 
mixture  of  deliberation.    Id. 

18.  MuRDFJi — Conspiracy  to  assault. —  If  a  number  of  men  combine  to 

invade  a  man's  household,  and  go  there  armed  with  deadly  weapons 
for  the  purpose  of  attacking  and  beating  him,  and,  in  furtherance  of 
this  common  design,  all  of  the  confederates  being  present  or  near  at 
hand,  one  of  tliem  gets  into  a  difficulty  with  their  common  adversary, 
and  kills  him,  all  are  guilty  of  murder.     Williama  v.  State,  443. 

19.  Murder  —  Indictment  —  Failure  to  allege  that  the  killing  was 

felonious. —  An  indictment  for  a  common-law  felony  should  charge 
that  the  act  was  done  feloniously  or  with  a  felonious  intent;  the  use 
of  no  other  words  will  supply  the  omission  of  such  an  allegation.  An 
indictment  for  murder  wliich  fails  to  allege  that  the  act  of  killing  was 
feloniously  committed  is  fatally  defective.    Kaelin  v.  Com,,  452. 

80.  Murder  —  Previous  intention  to  fight- Threats.— Where  it  ap- 
pears that  defendant  and  deceased  had  been  at  enmity ;  that  defend- 
ant had  threatened  deceased,  and  the  latter  expected  and  was  prepared 
for  trouble;  and  that  both  had  their  minds  made  up  to  bring  on  a 
quarrel  when  they  met,  and  kiU,  or  inflict  injury  which  might  result 
in  the  death  of  the  other,  and  a  difficulty  and  death  did  ensue,  no 
matter  which  provoked  it,  the  party  killing  will  be  guilty  of  murder. 
Bonnard  v.  State,  462. 


NEW  TRIAL. 

Motion  for  new  trial  must  appear  in  bill  of  exceptions.— In 
order  to  obtain  a  reversal  and  new  trial  on  the  ground  that  the  verdict 
is  against  the  evidence,  a  motion  therefor  must  have  been  made  in  the 
trial  court,  and  an  exception  to  the  order  denying  it,  which  must  ap- 
pear in  the  bill  of  exceptions ;  and  then  a  verdict  will  be  reversed  only 


''><■■     M 


C44 


AMERICAN  CRIMINAL  REPORTS. 


when  the  court  of  appeal  can  see  that  it  is  influenced  by  passion  or 
prejudice.     Oraiiam  v.  People,  539.    (See  note,  p.  582.) 
See  Appeal  and  Error,  5. 

NUISANCE. 

1.  A  UCENSE  FROM  A  COUNTY  BOARD  OF  HEALTH  to  manufacture  "  fertil- 

izers and  materials"  does  not  authorize  such  manufacture  in  a  way  to 
create  a  public  nuisance.  A  request  to  charge  that  a  license  is  a  de- 
fense to  an  indictment  for  creating  a  public  nuinance  was  properly 
refused,  and  a  charge  that  such  a  license  was  no  defense  to  an  indict- 
ment for  nuisance  created  by  tlie  licensees  in  their  business  was  unob- 
jectionable.    Oarreft  v.  State,  469. 

2.  The  legislature  has  power  to  legalize,  so  far  as  the  public  is  con- 

cerned, an  act  or  business  which  would  otherwise  be  a  public  nui- 
sance. Such  grant,  being  against  common  right,  should  receive  strict 
interpretation.    Id. 

8.  The  powers  conferred  by  the  legislature  upon  boards  of  health 
of  this  state  are  to  restrain  and  suppress  public  nuisances,  not  to  legal- 
ize their  creation  or  continuance.  Their  methods  are  designed  to  be 
auxiliary  to  the  ordinary  modus  of  public  protection.     Id. 

OATH  — RELIGIOUS  BELIEF. 

Oath  —  Religious  belief  of  Chinese —"  Burning  joss-sticks."  — 
Under  Revised  Statutes  of  Missouri,  1879,  sections  Wi2i,  3  JS5,  providing 
that  the  oath  shall  be  administered  to  a  person  about  to  be  sworn  in 
the  mode  most  binding  on  his  conscience,  and  that  every  person  be- 
lieving in  any  religion  other  than  the  Christian  religion  shall  be  sworn 
according  to  the  peculiar  ceremonies  of  his  religion,  when  a  Chinese 
interpreter  states  that  "  the  joss-stick  burning  is  the  true  oath  among 
the  Chinese,"  it  is  error  to  compel  him  to  be  sworn  in  the  usual  way. 
State  V.  Chf/o  CMagk,  407. 


ORDINANCE. 

1.  Constitutional  law  — Keeping  and  licensing  of  dogs  — Statute 
and  ordinance.—  Statutes  and  ordinances  may  be  passed  regulating, 
restricting,  or  even  prohibiting,  the  running  at  large  of  dogs  in  cities; 
and  this  although  dogs  are  unquestionably  property.  Dogs  in  cities 
may  be  classified,  and  the  owners,  keepers  or  harborers  thereof  may 
be  required  to  register  all  the  dogs  of  one  class,  and  not  the  dogs  of 
another  class,  and  to  pay  a  greater  registration  fee  for  the  registration 
of  tlie  dogs  of  one  class  than  lot  the  registration  of  the  dogs  of  another 
class :  and  such  owners,  keepers  or  harborers  of  dogs  may  also  be  re- 
quired to  put  collars  around  the  necks  of  their  dogs:  and  any  dog 
found  running  at  large  in  a  city  in  violation  of  the  statutes  or  ordi- 
nances may  be  summarily  destroyed.  All  this  is  constitutional  and 
valid,  and  is  "  due  process  of  law,"  and  by  the  sante  no  one  is  denied 
"  the  equal  protection  of  the  laws."  State  ex  rel.  Curtis,  County  At- 
torney, etc.,  V.  City  of  Topeka,  479. 

3.  Involuntary  servitude  —  Road- work.—  Statutes  and  ordinances  re- 
quiring two  days'  work  on  the  streets  of  cities  from  each  male  person 
between  twenty-one  and  forty-five  years  of  age.  or  $3  in  lieu  thereof, 
are  not  unconstitutional  or  void,  although  the  two  days'  work  im- 
posed may,  in  one  sense,  be  "  involuntary  servitude,"  imposed  upon 
persons  not  convicted  of  crime,  and  although  such  work  or  money 
may  also  be  assessments  or  taxes,  though  not  assessments  or  taxes 
within  the  meaning  of  section  1,  article  11,  of  the  state  constitution, 
and  although  the  provisions  of  auch  statutes  and  ordiaanoes  can  be 


INDEX. 


645 


enforced  only  by  proceedings  before  the  police  judge  without  a  jury, 
and  altiiougli  no  appeal  can  be  taken  from  the  decision  of  the  i)olice 
judge  to  a  court  witii  a  jury,  except  by  entering  into  a  recognizance, 
witli  security,  conditioned,  among  other  things,  for  the  payment  of 
any  fine  and  costs  which  may  be  adjudged  against  the  appellant ;  nor 
are  such  statutes  or  ordinances  void  because  they  provide  for  taV  ing 
private  property  for  public  use  without  compensation;  nor  because 
they  place  an  embargo  upon  the  right  to  vote;  nor  because  the  work 
or  the  payment  of  the  money  is  imposed  upon  only  a  class  of  persons, 
and  not  upon  all  persons.    Id, 

'■>■  Trial  by  jury  —  City  ordinance.— Section  10  of  the  bill  of  rights  of 
the  state  constitution,  which  provides,  among  other  things,  that  "in 
all  prosecutions  the  accused  shall  be  allowed  ...  to  have  .  .  . 
a  si)eedy  public  trial,  by  an  impartial  jury,"  applies  only  to  criminal 
prosecutions  for  violations  of  the  laws  of  the  state,  and  does  not  ap- 
ply to  prosecutions  for  violations  of  ordinary  city  ordinances,  which 
have  relation  only  to  the  local  affairs  of  the  city.  Id.  (See  note, 
pp.  493,  494,  495.) 

PERJURY. 

Omission  ^r  property  from  insolvent's  schedule  and  false  veri- 
fication.—  Where  a  petitioner  in  insolvency  wilfully  omits  from  his 
schedule  any  of  his  property,  and  then  verifies  his  petition,  schedule 
and  inventory,  as  prescribed  by  law,  he  is  guilty  of  perjury,  notwith- 
standing the  California  insolvency  act  provides  that  an  omission  of 
property  from  an  insolvent's  schedule  shall  constitute  a  misdemeanor. 
The  general  law  regarding  perjury  is  not  inconsistent  with  such  pro- 
vision of  the  insolvency  act,  and  is  not  in  that  rejiard  repealed  by  it ; 
the  false  verification  bt  ing  the  act  which  con.stitutes  the  perjury,  and 
not  the  omission  of  the  property,  which,  before  the  said  insolvent  law, 
constituted  no  olfense,  but  is  by  such  act  made  a  misdemeanor.  People 
V.  Piatt,  499. 

As  to  requisite  of  indictment  and  procedure,  see  State  v.  Fulason, 
495,  and  note,  p.  497  et  seq. 


PRACTICE. 

Hung  JURY  — DiscHARfiE  — Amendment  of  docket  nunc  pro  tunc— 
After  the  submission  ol  a  criminal  case  to  a  jury,  their  retirement  to 
their  room  for  deliberation,  and  their  failure  to  agree  upon  a  verdict, 
they  were  discharged  by  tlie  court.  The  following  entry  was  there- 
upon made  by  the  court  upon  the  trial  docket:  "  Jury  impaneled  and 
sworn.  Trial  had.  Jury  discharged  for  the  reason  that  there  was  no 
probability  of  jurors  agreeing.  Recognizance  fixed  at  $1,000.  Con- 
tinued." At  the  second  term  of  the  court  thereafter  the  defendant 
was  again  put  upon  his  trial  to  a  jury  upon  the  same  indictment.  He 
moved  the  court  to  disohaige  him  from  further  prosecution,  ottering 
in  evidence  in  support  of  his  motion  the  journal  entry  of  the  proceed- 
ings at  tho  former  trial,  from  wiiich  had  been  omitted  the  recital  from 
the  court  docket  of  the  leason  of  the  discharge  of  the  jury.  There- 
upon the  state  moved  the  court  to  supply  such  omission  by  an  order 
nunc  pro  tunc,  which  was  done,  the  motion  to  discharge  the  defend-  ■ 
ant  overruled,  and  the  trial  allowe<l  to  proceed.  Held,  there  was  no 
error  i'l  such  action  of  the  court.    Benedict  v.  State,  11. 

Conduct  of  trial  —  Argument  of  counsel.— a  conviction  will  be 
reversed  when  coiu'sel  for  the  people  refer  to  similar  prosecutions  in 
another  city,  and  allude  to  exceptions  taken  bydefendar:  saying  that 
the  purpose  was  to  take  down  everything  said  during  tne  trial  to  get 
error  into  the  record,  hoiiing  to  reverse  the  case  if  a  convicticm  should 
be  had,  and  remark  that  the  law  allows  defendants  to  testify  for  them- 
selves, and  ridicule  legal  proceedings  in  criminal  cases,  and  tell  the 


64C 


AMERICAN  CRIMINAL  REPORTS. 


jury  that  defendant  had  unsuccessfully  sought  a  change  of  venue, 
and  advert  to  the  alleged  improper  influence  exerted  over  the  admin- 
istration of  justice  by  defendant's  brother.    McDonald  v.  People,  137. 

8.  Reading  of  law  books  to  jdry.—  The  refusal  of  the  court  to  stop,  at 
the  instance  of  the  defendant,  the  reading  of  extracts  from  law  books 
to  the  jury  by  the  people's  counsel,  in  the  course  of  his  argument,  is 
not  a  reversible  error.    People  v.  Treadwell,  152. 

4.  Plea  in  abatement. —  It  is  not  error  to  sustain  a  demurrer  to  a  plea  in 

abatement  which  is  uncertain  and  defective  because  of  an  incomplete 
sentence.    Billinga  v.  State,  188. 

5.  Waiver.—  Where  there  is  no  plea,  but  a  trial  is  had,  the  objection  that 

there  was  a  trial  without  a  plea  must  be  made  in  the  trial  court  or  it 
will  be  deemed  waived.    Id. 

6.  Witness  —  Repetition  op  question. — It  is  held  in  this  case  that  the 

record  discloses  no  reason  why  a  witness  should  be  asked  to  repeat  the 
same  thing  which  he  had  testified  before,  or  why  the  same  question 
should  be  put  to  him  which  had  been  put  to  him  before.  Hughes  v. 
People,  502. 

7.  Change  of  venue  by  one  of  two  dependants  —  Presence  of  defend- 

ant IN  COURT. —  A  motion  for  a  change  of  venue  by  one  of  two  de- 
fendants jointly  indicted  effects  a  severance;  but  it  is  not  necessary 
that  the  other  defendant  be  present  in  court  when  tlie  motion  is  made. 
Shular  v.  State,  509. 

8.  Employment  of  counsel  to  assist  the  prosecuting  attorney.—  Dis- 

cretionary with  the  court.    Id. 

9.  iNSPEcrrioN  by  jury  of  premises  where  orimr  was  committed  —  Pres- 

ence op  accused. —  It  is  not  error  to  send  the  jury  to  view  the  prem- 
ises where  a  homicide  was  committed,  witiiout  directing  that  the 
accused  shall  be  present  during  the  inspection.    Id. 

10.  Argument  —  Misconduct  op  counsel.— A  judgment  will  not  be  re- 

versed for  misconduct  of  counsel  in  argument,  unless  it  was  such  as  to 
prejudice  the  substantial  rights  of  the  accused.  Id.  (See  note,  pp.  523, 
524,  525,  526.) 

11.  Practice  —  Bill  of  exceptions  —  Misconduct  of  jurors.— Where  it 

appears  that  evidence  was  heard  by  the  trial  court  upon  the  question 
whether  jurors  were  guilty  of  misconduct,  it  is  necessary,  in  order  to 
present  the  question  to  the  supreme  court,  that  all  the  evidence, 
whether  oral  or  written,  should  be  incorporated  in  the  bill  of  excep- 
tions.   Id. 

12.  Trial  — Argument  of  prosecuting  attorney  —  Failure  of  defend- 

ant TO  testify. —  It  is  not  competent  for  the  county  attorney,  in  the 
trial  of  a  criminal  prosecution,  to  urge,  in  argument  to  the  jury,  that 
the  respondent  did  not  take  the  stand  and  deny  the  testimony  intro- 
duced by  the  government.  State  v.  Banks,  520.  (See  note,  pp.  528, 
529.) 

13.  Incompetent  evidence  —  Failure  to  object  to.— The  admission  of 

incompetent  evidence  in  a  criminal  case,  if  not  objected  to  at  the  time, 
cannot  afterwards  be  made  the  ground  of  an  objection.  A  fortiori  so, 
where  the  party  against  whom  it  is  otfered  cross-examines  as  to  such 
evidence,  and  introduces  other  evidence  in  explanation  thereof.  Ora- 
ham  V.  People,  529. 

14.  Calling  witness. —  No  rule  of  law  requires  the  government,  rather 

than  the  defendant,  to  hold  or  call  a  witness  in  a  criminal  case.  Com. 
V.  Haskell,  582. 

15.  Special  venire  under  statute.— Where  a  motion  for  a  special  ventre 

is  made  three  days  before  the  day  on  which  the  case  is  set  for  trial. 


INDEX. 


C47 


the  court  has  no  discretion  to  refuse  it  under  Revised  Statutes  of  IMis- 
Bouri,  section  2802.    State  v.  Leabo,  538. 

16.  Prejudice  of  sheriff  —  Coroner  — Affidavit  as  f.vidence.—  Under 

Revised  Statutes  of  Missouri,  section  8804,  whicli  provides  that  tlie 
coroner  shall  perform  the  duties  of  the  sheriff  «vhen  it  shall  appear  to 
the  court  that  the  sheriff  is  interested  in  the  suit,  the  court  is  not 
bound  to  take  the  affidavit  of  a  party  as  conclusive  proof  of  prejudice 
alleged  against  the  sheriff.    Id, 

17.  Misconduct  of  prosecuting  attorney.—  A  judgment  will  not  be  re- 

versed for  error  when  it  occasioned  no  injury  to  the  accused,  although 
the  prosecuting  attorney  commented  on  the  verdict  of  a  former  jury. 
Id. 

18.  Withdrawal  of  plea  op  guilty — Appeal  — Trial  upon  merits.— 

In  all  cases  of  appeal  to  the  circuit  court  from  a  criminal  conviction 
before  a  justice  of  the  peace  on  a  plea  of  guilty,  it  is  the  right  of  the 
accused  to  withdraw  his  plea  of  guilty  and  have  the  case  retried  upon 
the  merits.    People  v,  Richmond,  541. 

19.  Adjourned  term  — Holding  two  courts  in  same  circuit  at  same 

TIME. —  Where  a  judge,  having  statutory  authority  to  appoint  an  ad- 
journed term  of  court,  makes  an  order  in  term-time  for  holding  an 
adjourned  term,  causes  notice  of  such  adjourned  term  to  be  given,  ap- 
pears at  tlie  time  appointed  and  opens  court,  the  proceedings  at  such 
adjourned  term  are  not  void,  although  held  at  a  time  when  another 
court  of  the  same  circuit  miglit  have  been  in  session  under  the  statute, 
and  was  in  session,  presided  over  by  a  special  judge.  Sviurr  v.  State, 
545. 

20.  Waiver  by  failure  to  object.—  If  a  defendant  voluntarily  appears, 

and  goes  to  trial  without  objection  at  an  adjourned  term,  irregularly 
held,  he  will  be  deemed  to  have  waived  all  objection  to  the  irregular- 
ity.    Id. 

21.  Conduct  of  trial  — Attorney  paid  by  private  party.— An  attor- 

ney, paid  by  private  parties  and  appearing  for  the  prosecution  in  the 
mu:iicipal  court  of  Milwaukee  upon  the  trial  for  murder  upon  the  re- 
quest of  such  parties  and  the  district  attorney,  but  without  any  ap- 
pointment from  the  court,  is  not  a  proper  attorney  to  aid  in  the 
proHucution  under  Laws  of  Wisconsin,  1887,  chapter  854.  Biemel  v. 
State,  656. 

22.  Instructing  jury  in  absence  of  accused.— It  is  reversible  error, 

under  the  Revised  Statutes  of  Indiana  of  1881,  section  1786,  entitling 
a  prisoner,  tried  for  an  offense  punishable  by  death  or  imprisonment 
in  the  state  prison  or  county  jnil,  to  be  personally  present  during  bis 
trial,  for  the  trial  court,  upon  trial  of  a  prosecution  lor  felony,  to  re- 
call the  jury,  and  give  an  instruction  withdrawing  and  correcting  a 
former  instruction,  in  the  absence  of,  and  without  notice  to,  the  ac- 
cused.   Roberts  v.  State,  564.    (See  note,  pp.  566,  567.) 

PRESUMPTIONS. 
See  Appeal  and  Error,  2.    Murder,  15, 16. 

PRIVILEGED  COMMUNICATIONS. 
See  Attorney  and  Client,  1.    (Note,  pp.  21,  22.) 


RAPE. 

1.  Husband  as  accessory  to  rape  on  his  wife.- A  husband,  desiring 
to  obtain  a  divorce  from  his  wife,  employed  a  man  to  seduce  her  while 


648 


AMERICAN  CRIMINAL  REPORTS. 


M   I 


he  could  be  a  witness.  Tlio  man,  not  being  able  to  accomplish  liia 
purpose  by  persuasion,  resorted  to  force,  and  raped  the  woman,  who 
screamed  and  endeavored  to  protect  herself,  wiule  tlie  h.usband  stood 
by  in  a  concealed  place,  and  not  only  refused  to  assist  her,  but  subse- 
quently filed  a  petition  for  divorce  on  the  ground  of  his  wife's  adul- 
tery on  this  occasion.  The  husband,  under  these  circumstances,  waa 
held  to  be  guilty  of  rape.    People  v.  Chapman,  568. 

2.  Penetration.— On  the  trial  of  an  indictment  for  rape,  where  there  is 
no  evidence  of  penetration,  a  verdict  of  guilty  will  be  set  aside. 
Hardtke  v.  State,  577.    (See  note,  p.  588  et  aeq.) 

8.  Expert  testimony, — The  prosecutrix,  being  a  child  twelve  years  old, 
a  question  asked  a  physician  as  to  whether  the  privates  of  a  well- 
developed  man  could  'enter  hers  is  proper.  Id,  (See  note,  p.  583 
et  aeq.) 

4.  Similar  occurrences.— It  is  error  to  exclude  a  question,  on  cross- 

examination  of  the  prosecutrix,  as  to  "whether  this  was  the  only 
time  defendant  was  ever  bad."  Such  a  question  is  pertinent  to  show, 
as  bearing  on  the  crime  charged,  whether  there  had  been  similar  occur- 
rences between  lier  and  the  accused.     Id.    (See  note,  p.  583  et  seq.) 

5.  Influencing  witness  — Credibility.— In  such  a  case  it  is  error  to  ex- 

clude questions  asked  the  prosecutrix  as  to  wlu'tlior  the  wife  of 
defendant  had  not  promised  to  give  her  presents  if  she  would  swear 
against  him,  and  bad  told  her  to  walk  lame,  and  taught  her  to  assume 
lameness.  Such  evidence  was  competent  to  show  that  defendant's 
wife  was  influencing  the  prosecutrix  to  testify  strongly  against  him, 
and  would  atfect  her  credibility.     Id. 

6.  Motive. —  After  it  had  appeared  that  the  wife  of  defendant  had  advised 

the  prosecution,  and  told  the  prosecutrix  to  swear  against  the  defend- 
ant, questions  asked  a  witness  as  to  whether  defendant's  wife  ever 
told  him  anything  about  arresting  defendant,  and  whether  she  told 
witness  that  she  was  going  to  get  rid  of  defendant,  are  competent  as 
showing  the  defendant's  wife's  motives  for  advising  the  prosecutrix. 
It  is  also  error  to  strike  out  testimony  of  a  witness  tending  to  show 
the  motive  of  defendant's  wife  in  attempting  to  influence  the  prose- 
cutrix to  testify  to  certain  facts  against  tlie  defendant.     Id. 

7.  Extent  of  injury— Feionino  lameness.— Where  the  prosecutrix  had 

testified  that  one  of  the  effects  of  the  assault  was  that  slie  was  lame, 
a  qutstinn  asked  a  witness  as  to  when  he  first  saw  her  widkin^; 
lame  was  pertinent  to  show  whether  the  lameness  wasr(>al  or  feigned, 
as  bearing  on  the  nature  and  exu-nt  of  the  injury.  Notwithstainiing 
this  question  was  ruled  out.  the  witness  answered  that  "  it  was  after 
defendant's  wife  had  cautioned  us."  A  question  had  been  asked 
wliether  it  was  not  in  tiie  presence  of  this  witness  tiiat  defendant's 
wife  had  instructed  prosecutrix  to  walk  lame,  and  ruled  out  by  tiio 
court.  It  was  error  to  rule  out  this  answer,  as  it  tended  to  show  that 
prosecutrix  was  feigning  lameness,  and  also  afleeted  her  credibility. 
In  such  a  case  it  is  also  error  to  exclude  testimony  going  to  show  that 
the  prosecutrix  did  not  walk  lame  a  few  days  after  tiie  assault.  It 
was  pertinent  to  disprove  the  extent  of  the  injury  charged.    Id. 

8.  Admissions  —  Co.nuuct  of  prosecuting  attorney  —  Statement  to 

JURY.— In  such  a  ease  the  testimony  of  the  prosecuting  attorney,  that 
at  the  prelin)inary  examination  the  defendant  had  told  him  to  stop 
the  prosecution:  that  he  did  not  hurt  the  girl  much, —  is  not  evidence 
of  the  crime  charged.  It  is  an  admission  of  nothing  more  than  an  as- 
sault; and  a  statement  madi^  by  the  prosecuting  attorney,  in  his  argu- 
ment to  the  jurj",  that  the  defendant  had  confessed  the  crime  to  him, 
should  have  been  corrected  by  the  coint.     Id. 

9.  Insanity  —  Defense  to  rape  — Burden  of  proof.— Defendant  who 

relies  upon  insanity  as  a  defense,  in  a  trial  for  rape,  nuist  prove  that 
fact  by  a  preponderance  of  evidence.    Coatea  v,  State,  585. 


INDEX. 


649 


10.  Female  under  twelve  — Consent.— In  a  trial  for  rape,  committed  on 
a  girl  of  ten,  an  inBtruction  by  the  court  that  if  the  girl,  at  the  time  of 
the  conmiission  of  the  offense,  was  under  twelve  years  of  age,  and  on 
account  of  her  tender  years  was  incapable  of  understanding  the  nat- 
ure of  the  act,  her  consent  would  not  protect  the  defendant,  was 
proper.    Id.    (See  note,  p.  589  et  seq.) 

RECEIVING  STOLEN  PROPERTY. 

1.  Failctre  to  keep  book  — Evidence.— The  failure  of  a  junk-dealer  to 

keep  a  book,  as  required  by  law,  wherein  all  articles  purchased  by  him 
are  to  be  entered,  may  be  shown  in  a  prosecution  against  him  for  re- 
ceiving stolen  property.     Com,  v,  Leonard,  593. 

2.  Knowledge  that  goods  were  stolen.—  If  the  accused  did  not  know 

the  facts  under  wliich  the  property  was  taken,  but  believed  from  the 
circumstances  that  the  property  had  either  been  embezzled  or  stolen, 
and  it  had  been  actually  stolen,  he  may  be  convicted  of  receiving 
stolen  property.    Id. 

3.  Reasonable  doubt. —  If  the  jury  are  not  satisfied,  beyond  a  reason- 

able doubt,  that  defendant  knew  the  property  was  stolen,  he  will  be 
entitled  to  an  acquittal.    Id. 

ROBBERY. 

Indictment  — Description  op  offense  —  Against  the  will,  etc.— 
Under  Penal  Code  of  California,  section  211,  defining  robbery  to  be  the 
felonious  taking  of  personal  property  against  the  tvill  of  the  person 
robbed,  an  indictment  charging  tlie  defendant  with  taking,  "  by  means 
of  fraud  and  force.  ,  .  .  $100  lawful  money  of  tlie  United  States, 
said  money  being  the  property  of  one  M.,"  is  sufficient.  People  v. 
Riley,  600. 

SEDUCTION. 

1.  Information  for  seduction— Allegations.— An  information  is  suf- 
ficient under  section  36,  chapter  31,  Compiled  Laws  (Kansas),  1879, 
which  charges  that  one  B.,  a  male  person,  did  then  and  there  unlaw- 
fully and  feloniously  obtain  illicit  connection  with  one  K.,  she,  the 
said  K.,  then  and  there  being  a  female  person  of  good  repute,  of  the 
age  of  only  seventeen  years,  and  the  said  B.  did  then  and  there  obtain 
such  illicit  connection  with  the  said  K.  aforesaid,  at  the  time  and 
place  aforesaid,  undt-r  a  promise  of  marriage  then  and  tliere  made  by 
him,  the  said  B.,  to  her,  the  said  K.    State  v.  Bryan,  604. 

3.  Proof  of  particular  acts  of  illicit  intercourse  with  other  men.— 
Upon  the  trial  of  a  defendant  for  the  offense  charged  it  is  not  conipetent 
for  the  defendant  to  prove  particular  acts  of  unchastity  or  specific  acts 
of  illicit  intercourse  by  the  prosecutrix  with  other  pe'  -'ms.  "  It  is  the 
reputation  and  tiie  age  of  the  female,  and  not  lier  previous  conduct, 
that  bring  her  within  the  protection  of  the  statute."    Id. 

3.  Evidence  as  to  reputation  op  woman  for  chastity.— Where  the 
prosecutrix  has  recentljy  lived  in  tlie  n«>ighborhood  of  the  witness, 
which  is  about  five  miles  from  her  own  liome,  and  is  generally  ac- 
quainted in  tliat  neighborhood,  and  fiucli  witness  knows  the  general 
reputation  of  the  prosecutrix  for  chastity  in  such  neighborhood,  but 
does  not  know  her  general  reputation  lor  chastity  in  the  particular 
neighborhood  in  which  she  resides  at  the  time  of  the  trial,  such  wit- 
ness may  be  permitted  to  give  evidence  of  lier  general  reputation  for 
chastity  in  his  neighborhood.     Id. 

4  What  is  reputation  for  chastity  —  Nf.oative  evidence.  —A  woman's 
reputation  for  chastity  is  what  the  people  of  her  acquaintance  gen- 


r 


650 


AMERICAN  CRIMINAL  REPORTS. 


a. 


erally  say  of  her  in  this  rngard ;  that  is,  the  ^ereral  credit  for  chastity 
which  sne  bears  among  her  neiKhbors  and  acquaintances.  If  n 
woman's  neigliljors  and  acquaintances  say  notliing  of  her,  or  do  not 

auestion  her  character  for  chastity,  then  her  reputation  in  this  regard 
lould  be  considered  good.    Id.    (See  note,  p.  018.) 

SENTENCE. 

Sentence  —  Correction  on  appeal. — In  a  case  of  misdemeanor  a 
sentence  to  hard  labor  for  costs,  on  non-payment  or  confession  of  judg- 
ment, cannot  exceed  eight  months  (Code,  g  4731:  Sees.  Acts  1880-81, 
p.  87).  but  a  judgment  for  a  longer  term  will  be  corrected  and  affirmed 
wlien  the  record  shows  no  otlier  error.     Vaughn  v.  State,  68. 

Prior  convictions  —  Sentence.—  A  defendant  on  trial  for  burglary 
pleaded  guilty  to  the  charge  of  "  prior  convictions,"  and  the  court  did 
not  instruct  the  jury  as  to  such  prior  convictions,  nor  did  it  appear 
from  the  record  that  any  reference  was  made  to  them  during  the 
trial.  The  jury  found  the  defendant  guilty  of  burglary  in  the  first 
degree,  but  did  not  find  in  reference  to  the  prior  convictions,  which  be- 
fore judgment  were  withdrawn  on  motion  of  the  district  attorney,  and 
the  court  only  sentenced  the  prisoner  to  imprisonment  for  ten  iimtead 
of  fifteen  years.  Held,  that  it  must  be  presumed  that  the  clerk  liad 
obeyed  the  law  (Penal  Code  Cal.,  §  109<i)  and  omitted  to  read  the  prior 
convictions  to  the  jury,  and  that  the  court  in  view  of  their  withdrawal 
had  disregarded  them  in  considering  the  sentence.  People  v.  Flynn, 
180. 

THREATS. 
See  Arson,  2.    Murder,  SO. 

VARIANCE. 
See  Forgery,  2.    Indiothbnt,  8. 

VERDICT. 

See  Appeal  and  Error,  8.    Assault  with  Intent,  1.    Former  Jeop- 
ardy,.6. 

WAIVER. 
See  Jury,  1, 17.    Practice,  5,  20. 


WITNESS. 

Witness  —  Impeachment  —  Bias  of  witness. —  On  a  trial  for  murder, 
evidence  that,  on  the  night  before  the  homicide,  the  principal  witness 
for  the  state  had  a  quarrel  with  defendant  and  said:  "  I  will  see  you 
again,  and  shoot  a  hole  in  you  a  yellow  dog  can  jump  through.  I  am 
all  wool,  a  yard  wide,  and  hard  to  curry,"  —  is  admissible  to  show  thu 
hostility  and  bias  of  witness  against  defendant.  Bonnard  v.  State, 
462. 

See  Credibility  of.    Abduction,  4.    Instructions,  8,  7.    Mur- 
der, 6.    Rape,  5. 


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